No Public Defenders Need Apply for the Supreme Court

          Joe Biden has nominated Ketanji Brown Jackson to be a Supreme Court Justice. And this is where we now are on judicial nominees: Republicans know they will oppose her nomination, so they are now looking for reasons to justify that opposition. Lucky for them she was a public defender because now they can vilify her as being lax on crime.

          Other Biden judicial nominees who were public defenders have been asked by Senators Tom Cotton, Josh Hawley, and Ted Cruz questions that boil down to, “How could you represent such scum?” Public defenders are not surprised by this question at social gatherings from people who do not fully grasp our legal system. On the other hand, Cotton, Hawley, and Cruz have degrees from some of the country’s finest law schools. The all clerked for federal judges, two of them for Supreme Court justices. You might expect them to understand American justice and recognize the importance of defense lawyers in that system, but their comments only reveal either their ignorance or their disingenuousness.

          The Senators, however, are selective in their disdain for lawyers who represent criminals or those accused of crimes. When I taught, some students would tell me that they could never represent organized crime. My response was, “I guess you are not going into corporate law then.” I was only being semi-flip. Although corporate crime has seldom been a high prosecutorial priority, many corporations have defended themselves in our criminal justice system. For example, to avoid criminal prosecution in 2015, General Motors paid a $900 million fine for hiding a fatal ignition switch defect responsible for 174 deaths. (How often has a public defender had a client linked to 174 deaths?) As a result of charges filed in 1996, Archer Daniels Midland pleaded guilty to criminal antitrust violations for fixing prices and paid a fine of $100 million. In 2013, Halliburton pleaded guilty to charges stemming from an oil spill in the Gulf of Mexico that killed eleven people. In 2021, United Airlines paid over $49 million to resolve criminal charges and civil claims on postal service contracts.

          You can play a little parlor game: Put into a search engine the name of a corporation and “criminal” or “felony” conviction and see how many hits you get. You can go further and put in the name of a major financial institution together with “fraud” and see what comes up. You might learn that investment firms paid over $20 billion to settle fraud claims from the sale of mortgage-backed securities in 2005 to 2007, behavior that might have been criminally prosecuted.

          In other words, if you know a corporate attorney, there is a good chance that you know somebody who works for, and presumably gets well paid by, a criminal. But there is little chance that you would hear those lawyers derided by Republican senators because of their clients.

          True conservatives who are concerned about checking governmental power and overreach should, of course, be thanking, not denigrating, public defenders. The government has the power to criminally investigate and punish people. Right wingers screech about this power only when other right wingers are caught up in our criminal justice system, but true conservatives should be concerned with the appropriateness of this authority all the time. Since defenders provide a check on governmental power and overreach, they should be celebrated by those who claim conservative credentials.

          I am not surprised when “conservatives” pandering for partisan gain do not uphold conservative principles, but I still found some recent comments by the Republican National Committee noteworthy. A news story reported that the RNC “in a background paper on her nomination for the high court referred to Judge Jackson’s ‘advocacy for these terrorists’ [imprisoned at the U.S. military prison at Guantanamo Bay] as ‘going beyond just giving them a competent defense.’” If an attorney for the government at Guantanamo were a judicial nominee, I doubt the RNC would label the lawyer an advocate for torture even though it has been established that detainees were tortured. More startling, however, is that conservatives are trying to vilify Jackson for going beyond competence in her job. They apparently don’t want people who do their jobs too well on the Supreme Court. Mediocrity is good enough.

          And while I assume the Senators Cruz, Cotton, and Hawley have proclaimed that they want Supreme Court justices who are “originalists,” these conservatives would appear to be ignorant of the importance placed on defense advocacy by the founders of the country. Our Constitution expressly rejected English law and guaranteed a right to counsel because of the important role defense attorneys had for preserving American freedom.

(continued March 23)

Put Labor Back into Labor Day (concluded)

          Ofttimes unions have been a scapegoat for various economic woes. At the time that Japanese car companies were first making major inroads into the American market and American automobile makers started to decline, I was at a party where I met Tina who worked for a major investment house. She railed against the auto unions and blamed them for the problems of General Motors and their brethren. I found this strange. The Japanese car companies were then known to take much better care of their workers than their American counterparts. That didn’t seem to indicate that the unions were the real cause of the problems. On the other hand, Japan car companies had devised a superior just-in-time system of assembly line production that the Americans did not have. The Japanese were simply more efficient. The foreign companies were simply better managed, but for Tina, and many others, it was easier to blame unions than to criticize the American corporate structure.

          It is not just narratives like Tina’s that has made the American corporate war on unions successful. It has been aided by laws passed by conservative states and legal decisions by conservative courts. It has also been furthered by our immigration laws and enforcement. Periodically, as happened recently, ICE raids a plant and arrests hundreds of undocumented aliens working there. Gee, how does it happen that those large numbers were at the same workplace? Did management not know they were there? Perhaps such a raid seems to harm the companies because they lose a workforce, but instead they aid the owners. The workers are soon replaced, and a message is sent out to them and to others in different companies: Don’t draw attention to yourselves by unionizing or complaining about wages or unsafe and other working conditions. Such attention can lead to your deportation. Until such raids have serious consequences for the companies and management, the raids just nurture low wages and dangerous work environments.

The number of unionized private sector jobs is about one-fifth of what it once was, well under ten percent. The consequences for the country have been immense. A study concluded that a major cause of our rising income inequality has been the decline of unions.  See https://economix.blogs.nytimes.com/2011/08/04/labors-decline-and-wage-inequality/. It is not just that the wages in what were unionized jobs have not kept pace, but also that when unions were strong, companies often increased wages to stave off unionization efforts.

          There has also been a political fallout. Who you hang out with affects your views. Politicians no longer seek out union support as they once did. They hang out with corporate and other business leaders. That is where the money is, and money increasingly controls our political process. In the 2016 election cycle, business outspent labor by sixteen to one, with businesses spending $3 billion on lobbying and unions spending $48 million.

          Unions in the past worked for laws that helped all working people, but now they have little effect. This is part of the reason that, unlike in other developed countries, we do not have guaranteed paid parental leave, paid vacations or sick days, and the minimum wage as a percentage of the median wage is lower than in other developed countries. Instead, we have seen the rise of unpaid interns in the work force and workers forced into arbitration systems that favor corporations. We have also seen a major shift to temporary and contract workers. Google, for example, has more temporary and contract workers than full-time employees.

            This is not to suggest that everything unions might advocate for is necessarily a good thing, but as the union voice is increasingly drowned out by the big money coming from a relative handful of rich people something important has been lost in our country. (If you want to be depressed, read Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right by Jane Mayer.)Unions may still be in the dining room, but they are at the kids table and seldom heard.

On Labor Day we can have picnics and hit the back-to-school sales, but the day was meant to be a commemoration of organized labor. We have politicians who proclaim a concern for blue collar workers, but our present political system is rigged so that labor can be largely ignored, and corporations can be served.  Without a strong labor movement, the country is not as well off as it ought to be. Let’s put Labor back into Labor Day.