Supreme Court Justice For All? The Shameful Attack On Zealous Advocates For The Despised

The popular version of the heroic criminal defense lawyer is one who tirelessly defends the wrongly accused, saving a client who is more victim himself (or herself) than perpetrator.  In real life, defense lawyers are usually called upon to represent the guilty, to provide a vigorous defense for those who have committed despicable acts.  This is a far more heroic calling. Indeed, it is critically necessary to our system of justice to have dedicated, skillful advocates representing people who are hated and feared, and ensuring that the government is following the law.

I recently argued that President Obama should nominate a criminal defense attorney to the Supreme Court.  (A Public Defender For Justice)   In my view, lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, bring a critical perspective about challenges facing the most vulnerable in our society, and about the inherent biases in the legal system against the poor and people of color and those accused of crime, who are often both.  This is a perspective sorely missing on the high court, as well as throughout the federal judiciary, in which prosecutors out number public defenders by more than 3 to 1.

Unfortunately, it is becoming  all too common that zealous lawyers who take on the cases of notorious clients are themselves targeted and deemed essentially ineligible for higher office.  One ideal candidate for the Supreme Court is Jane Kelly, a former public defender who now sits on the U.S. Court of Appeals for the Eighth Circuit, having been confirmed by the Senate in a 96-0 vote.  Shamefully, a conservative group called the Judicial Crisis Network has launched a preemptive attack against Judge Kelly for having represented a man named Casey Frederiksen for child pornography when she was a public defender.  It turns out Frederiksen was later convicted for killing a five-year old girl and the fact that Kelly provided constitutionally-mandated representation for this very bad man makes her unworthy of a Supreme Court nomination. 

This is part of an all-too-familiar strategy.  In 2010, Liz Cheney and her group, Keep America Safe, launched a smear campaign against lawyers in Obama's Justice Department, referring to them as the "Al Qaeda 7," for previously having represented Guantanamo detainees.  A group of former Bush Administration officials and other prominent lawyers thankfully shot back, publishing a letter condemning Liz Cheney's ad.  They rightfully stressed that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre."

Two years ago, the United States Senate voted to reject Depo Adegbile, an otherwise sterling choice to run the Civil Rights Division of the Justice Department, because he headed the NAACP Legal Defense and Education Fund when it represented Mumia Abu-Jamal, sentenced to death for killing a police officer, in his successful fight for life.  (Abu-Jamal is now serving a life without possibility of parole sentence.)   Bob Casey, a Democratic Senator from Pennsylvania, paid lip service to “respect[ing] that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime" but added the disturbing non sequitur that "it is important that we ensure that Pennsylvanians and citizens across the country have full confidence in their public representatives — both elected and appointed.”  Republican Senator Lindsay Graham, defending Adegbile's rejection by the Senate, was more direct:  “When someone has a history of helping cop-killers, this is what happens.”

Then there was the offensive campaign ad sponsored by the Republican Governors Association (RGA), entitled "Vincent Sheehan Protects Criminals, Not South Carolina." Sheehan was running for Governor against Republican incumbent, Nikki Haley.  He was described in the ad  as "trial lawyer" who "made money off criminals" and "got a sex offender out of jail time."  Indeed, he was actually paid for defending “violent criminals who abused women.”  Can you imagine?

What I can't imagine is that any reasonable person would disagree that it is critical to our legal system to ensure that all criminal defendants have effective advocates.  But as President Obama is looking for an unassailable candidate for the Supreme Court to highlight the Republican Party's anticipated obstruction, it is deeply troubling that someone like Judge Kelly  -- who after Harvard Law School and two prestigious federal clerkships, chose not to take her formidable legal skills to a high-powered law firm but instead committed herself to the less far lucrative, time-honored tradition of representing the despised -- is being assailed.