08 November 2004

Qualities of a Supreme Court Justice

Southern Appeal has a short post about the possibility of Justice Thomas being elevated to Chief Justice. The short discussion afterward centers on whether Justice Thomas would be willing to go thru all the garbage which would surely be ramped up again for another confirmation hearing. Of course there is also the proclaimed wish of many who would like to see Justice Scalia move to the front of the class. Southern Appeal is better suited to discuss the politics of such an appointment so I will leave it to Feddie et al.

What I'm interested in discussing is the qualities, as a defense attorney, I would prefer to see in a supreme court nominee. To do this I will engage in some enlightened self interest.

Those who work as a criminal defense lawyers usually come to believe that almost every judge is a judicial activist when it comes to upholding the conviction of a "criminal" or defending the processes of the criminal justice system. Perhaps uniquely, in criminal law judges of all persuasions seem willing to bend the rules and stretch the constitution in order to keep convictions from being overturned. Most prominently, this is found in the shambles that is 4th Amendment search and seizure jurisprudence - where it has been found that a search using a dog isn't really a search, and that if you search a car after someone who was shortly thereafter arrested / detained it is constitutional because the arrestee might be able to have a weapon in the car close enough to use or evidence in the car close enough to destroy (as if any competent officer is not going to secure the arrestee first), and that judges aren't capable of seeing the difference between a purposeful violation of rights thru a pretext stop and a real stop (to which I still say: if a judge cannot do it then convene a jury).

"Pragmatists", whether they are from the left (Breyer's absolute devotion to the clearly problematic sentencing guidelines) or the right (Rehnquist ruling that citizens can be forced to identify themselves to an officer), are the bane of those charged with a crime. How many times do we stand outside of a courtroom talking to our clients trying to explain that "Yes, I think the dog walking around your bag is bogus and a clear violation of your right 'to be secure in [your] effects . . . against unreazonable searches and seizuires.' Unfortunately, the federal supreme court has opined in dicta that dogs are these magical creatures who - despite the fact that their use reveals things which would never have been revealed by normal human senses - do not perform a search. Now, I know that's not logical but the supreme court thinks that dogs are beasts with these magical properties and therefore the trial judge and every appellate judge thinks they are enchanted, non-search beasts. So no search took place. Understand?" Pragmatists scare the bejeezuz out of me. Their primary rationale tends to boil down to "If you aren't the person the government is looking for you don't have anything to worry about because this won't effect you." The assumption here is that the government would only go after "actual" criminals; the fact that we are all prety much constantly in violation of some law seems to escape these people (who are too high on the social ladder to be effected by that fact).

(1) So I am coming out in favor of putting another textualist on the court. By this I mean that a new justice should adhere to the idea that a statute or constitutional section means what it says and says what it means. (2) He should understand that stare decisis is important in criminal law because it is an area of the law where the objective is for the law to penetrate the consciousness of the people; changing the law often or complicating it through exception after exception leaves a large portion of the populace without an understanding of the law. Let's face it, most people do not have the tools or time to keep up with the actual status of the law; it sinks in when they hear what happened to Uncle Joe and/or Bob' wife. (3) He should also realize that people tend to think the constitution actually means something and should not be afraid to get rid of bad precedent which clearly contradicts it (dog non-searches, post arrest "possible threat" car searches, the guidelines are constitutional, etc.) (4) He should be dedicated to leaving those decisions in place which enforce the constitution, particularly Miranda and the exclusionary rule. While these are neither demanded nor denied by the constitution they do provide incentives for the government to obey the constitution. Most of the other offered options are jokes although there is one possible option which could work besides exclusion (see last 4 paragraphs here). (5) He must apply the Rule of Leniency. While a universal principle, in Virginia it is explained with this oft quoted, oft ignored proposition: "When there is ambiguity in a statute the statute must be construed strictly against the Commonwealth." Usually this boilerplate is followed with an explanation as to how something found in an obscure passage in the insurance statutes explains what the General Assembly meant to say in this criminal statute (and no explanation as to how the rule was circumvented). This is one of the oldest, most cherished protections of liberty; a justice must be willing to enforce it.

Finally, I would like to see someone who has actual experience in criminal law elevated to the supreme court. And I don't mean as a judge, a member of some task force, a professor of criminal law dabbling a little on the side, or a federal prosecutor. I mean someone who has had extensive experience in the trenches, trying case after case in a State court where there is little insulation from the people effected by the trial (whether complaining witness or defendant). Where crushing caseloads make you realize what is important and what is not so that you can better value a case. The best of the best would probably be a defense attorney who worked in law enforcement prior to joining the bar; this would be a person who actually understands the practical realities of criminal law.

Those are my first thoughts as to the qualities I'd like to see in a supreme court justice. What do ya'll think?


Bryan said...

It would be easier for a camel to go through the eye of a needle than for a defense attorney to get confirmed to a federal appellate court. The public looks at a prosecutor who bags a big conviction favorably, but a defense attorney is personally responsible for everyone he has defended.

Anonymous said...

There are a number of former public defenders on various federal courts of appeal. They have been nominated and elevated by presidents of either both parties.

There are a few CTA judges with Public Defender Experience:
Ed Prado (5th) (hey.. he is Hispanic, and he even ran for a state judgship as a Republican, and has experience as a prosecutor -- yet somehow he is overlooked for the Supremes)

Ken Lammers said...

I don't expect someone who has been a defense attorney to get elevated. That part is pretty much a pipe dream (although, if called upon I will serve). It's just a reality that most who do this kind of work just are not sufficiently politically connected.

The section above (1-5) is what I would really hope for. I get so tired of reading a statute, thinking it has a clear meaning (firearm must be present) and then reading the appeallate court decisions which hold that all that is needed for a conviction is a threatened presence (hand in pocket) or subjective belief by the complaining witness that a firearm is present. I want judges who stick to the meaning.

Ken Lammers said...

Methinks I am the victim of my spell checker. I swear the post said "Rule of Lenity" when I first wrote it.

Anonymous said...

Jesus christ folks, I gave you the name of one DCT judge who was elevated to a CTA who was a former PD.

Ken Lammers said...

Yes, I know that some few are out there (although I've never appeared in front of one). Do I think they can get elevated to the federal supreme court? No.

123 said...

I can’t name a single line prosecutor who has ever been elevated to the Supreme Court, either.

Ken Lammers said...

Off the top of my head, Chief Justice Vinson was a Commonwealth Attorney in Kentucky.

On the current court Justice O'Connor served as a county attorney but I'm not sure what that entailed.

Anonymous said...

On the current Court the only two justices with trial court level experience are O'Connor (as noted) and Souter who was a no-nonsense prosecutor and trial judge before moving up the feeding chain.

So-to be Justice Roberts has handled part of a death case pro bono, has handled several criminal appeals (including wins as counsel for the accused in the SCOTUS), however, his trial court level experience is limited to one trial as an assistant to trial counsel with his even being in the courtroom (and of course not present for that gut wrenching period between the jury knock and verdict).

- karl