Can There Be Vanity *And* Expertise At SCOTUS?
August 25, 2016 (Fault Lines) — Andrew Crespo’s suggestion that the Supreme Court put together an “expert” Supreme Court defense bar to help argue criminal cases before The Nine Eight has ruffled a few feathers. Particularly galling were the comments of Justice Kagan:
“Case in and case out,” she said, “the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.”
and Justice Sotomayor:
“I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” Justice Sotomayor told Reuters in 2014.
Josh took particular offense to the implication that mere mortal lawyers who weren’t Supreme Court experts weren’t ready for prime time; and suggested that the problem lay elsewhere.
So all of these crappy opinions stem from vain, egotistical criminal lawyers who refuse to step aside and let a friend of Alito’s wife real expert handle the case? Wrong. The Supreme Court may want its echo chamber, but actual defendants need the opposite. They need real lawyers. People who have represented real clients. Someone who has gotten up in the middle of the night and gone to the jail. Lawyers who have stomped around crime scenes and yelled at prosecutors and argued with trial judges and just lawyered.
It’s true, the whole idea of an “expert” Supreme Court defense smacks of lawyers’ obsession with pedigree, which gets worse and worse the higher ones goes in the profession. That said, appellate advocacy is a different ballgame than trial advocacy. Take, for example, cross examination. The fact that you can make a testilying officer faint on the stand, in between sessions of editing Pozner and Dodd, doesn’t mean a whole lot when being peppered with questions from on high.
The same goes in reverse. Take Jeffrey Fisher, the lone occupant of intersection of the Venn Diagram whose circles are labeled “Supreme Court expert” and “Criminal Defense Lawyer.” This is the guy who won Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Riley v. California. Yet, there’s nothing in his resume that suggests you would want him as first chair in a murder trial. Not because he isn’t brilliant or capable. But you wouldn’t let anyone try a murder case until they’ve cut their teeth on lesser cases.
The Lord High Admiral was also wary of Crespo’s idea, saying:
Crespo’s solution is to have some entity, like the ACLU, argue as a super amicus on behalf of the defense side, but that scares me more than having no “expert.” Sorry, kids, but the ACLU doesn’t speak for my clients, and is quite often on a very wrong path for the defense. The NACDL might be closer, but still, nobody elected them the final voice of criminal defense. I’ll argue my own position, thank you very much, rather than defer to either what the ACLU or NACDL thinks is the right outcome.
To this I would add, there is no one who knows the facts of the case than the original defense lawyer, assuming basic competency. And it’s a hell of a lot easier to teach a trial lawyer appellate advocacy than it is to teach the nuts, the bolts, the guts, of the case to an appellate lawyer who only has the trial transcript.
That said, it doesn’t have to be either/or. Crespo’s suggestion was that a counterweight was needed to balance the expertise of the Solicitor General’s office, who argue Supreme Court cases like it’s their job…because, well, it’s their job. It wouldn’t necessarily be the ACLU or NACDL that would be the “super amicus.” Crespo was only using them as examples. A better model would something like a division of the federal defender’s office, specifically designed as a mirror image to the Solicitor General.
As always, the devil is in the details. If this hypothetical organization is simply there to, as Josh puts it “pat each other on the back for being in the club,” it won’t work. But it doesn’t have to be that way. When state prosecutors get a case in the Supreme Court, they typically argue along with, not instead of, the Solicitor General. So long as our hypothetical super-amicus played a similar part, and didn’t look down their noses at the hicks from the sticks who get their hands dirty with actual defendants, it could work.
I’d give up two toes and a non-thumb finger to argue a case before the Supreme Court. And after I have kids, I’d consider giving up the leftward half of another portion of my anatomy. But if I ever get there, I wouldn’t mind having someone else who knows the ropes riding shotgun.
 Kidney. Get your mind out of the gutter.