Monday, February 22, 2016

A Public Defender For Justice

The typical path to becoming a federal judge is to have been a prosecutor and/or a big firm lawyer representing corporate interests.  This is true whether the president is Democrat or Republican.  Indeed, while President Obama can rightfully boast about the diversity of his federal court appointments in terms of race, gender and sexual orientation, it is troubling that roughly 85% of his federal court nominees have been corporate attorneys, prosecutors or both

In addition, according to an Alliance for Justice report published last year:
  • Fewer than four percent of President Obama’s judicial nominees have worked as lawyers at public interest organizations;
  • Fewer than four percent have significant experience representing workers in labor and employment disputes;
  • Prosecutors outnumber public defenders (state or federal) by more than three to one;
  • Only four out of 56 circuit nominees have worked as a public defender (state or federal), compared to 21 who have worked as prosecutors.
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    Lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, and who have taken on Big Business, 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. 

    Countless legal determinations require applying a "reasonableness" standard -- what a reasonable person would do or understand -- or deciding whether a particular claim is "plausible."  Such judgments are necessarily filtered through one's personal and professional experiences.  Thus, as Sen. Elizabeth Warren has explained:  “It matters that someone has represented people other than corporate clients, that they’ve had real experience with people who can’t afford lawyers, that they’ve had real experience trying to fight for the public interest …. It matters where you come from.”

    This is a perspective that is sorely missing on the Supreme Court.  Even so, Supreme Court watchers who bandy about qualified nominees to replace Justice Scalia rarely mention the host of brilliant candidates with experience as public defenders or public interest lawyers.

    A article appearing in the National Association for Public Defense provides an impeccable list that begins with a perfect choice:  Bryan Stevenson:
    Stevenson, 56, is our country’s greatest human rights lawyer. Stevenson is the founder and head of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system for 30 years. He has successfully argued in the Supreme Court, including this January’s decision striking down mandatory life-without-parole sentences for children. Stevenson speaks eloquently about America’s troubled history of racial strife and injustice, and about how to heal the wounds of that history. President Obama selected Stevenson to serve on last year’s Task Force on 21st Century Policing.
    The NAPD piece provides several other stellar candidates, including practicing lawyers (Lisa Feeland, David Singleton, Christine Swarns) law professors (Ronald Sullivan, James Forman, Michelle Alexander) and federal appellate judges (Robert Wilkins, Jane Kelly). 

    It goes without saying that no matter who President Obama chooses to replace Justice Scalia, he or she will be met with unprecedented obstruction from the Republican-led Senate given that anyone to the left of Justice Kennedy will dramatically shift the Court's ideological balance and provide a liberal majority for the first time since the early 1970s.  But that shouldn't stop Obama from choosing a candidate who has devoted a legal career to fighting for justice rather than for power. 


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