A Defender Office for Supreme Court Advocacy?

July 18, 2016

By Kimberly Strawbridge Robinson, Bloomberg BNA

An “independent federal public defender office charged with representing poor defendants before the United States Supreme Court” is necessary to fill gaps in legal services to the poor and “better balance the scales of justice between the government and the defendants,” Sen. Cory Booker (D-N.J.) said earlier this month.

Booker introduced the Clarence Gideon Full Access to Justice Act, S. 3144, July 7, which would create the Defender Office for Supreme Court Advocacy. The office would monitor, file briefs in, and possibly argue on behalf of defendants in criminal cases at the high court, Booker said in introductory remarks.

The proposed office is largely modeled after the U.S. Solicitor General’s Office, which represents the federal government at the Supreme Court, Booker spokeswoman Monique Waters told Bloomberg BNA.

That creates a “structural imbalance” between the government and criminal defendants that the proposed Defender Office is intended to address, Waters said.

The government is represented by “a small cadre of lawyers from the Solicitor General’s Office dedicated solely to Supreme Court litigation,” Booker said in his introductory remarks.

But public defenders currently lack a similar office.

“Without counsel trained and experienced in Supreme Court advocacy, the likelihood that cases are decided against criminal defendants increases,” Booker said.

Justice Elena Kagan has spoken about the lack of Supreme Court experience among criminal defense attorneys.

“[C]ase in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” Kagan said in 2013.

She blamed that, in part, on criminal defense attorneys refusing to hand over their cases to Supreme Court experts.

“Appellate advocacy is hard and it takes a lot of skill and a lot of experience.” Often criminal defendants are represented in the Supreme Court by whomever was the trial counsel, Kagan said.

Getting these cases instead into the hands of a Supreme Court specialist would be an “enormous help to the system,” she said.

The federal Defender Services currently has a program, the Supreme Court Advocacy Program, to attempt to address some of these problems.

The Defender Services partners with Sidley Austin LLP to provide federal defender staff and private appointed attorneys with “a range of services, such as arranging moots, performing legal research, providing substantive and strategic advice, or editing and writing drafts of merits briefs,” according to its website.

But Jeffrey T. Green, who runs the program at Sidley, told Bloomberg BNA in an e-mail that he agrees with Kagan.

One of the principal difficulties is that “attorneys don’t like to give up what they perceive to be a ‘golden opportunity,’ ” Green said.

Still, because “the Court works so hard to get questions right,” Green said he doesn’t “think the failure to turn over cases is outcome-determinative in all but a handful of cases.”

However, “because these cases have lots of collateral effects — the shape, tenor, and scope of the debate really matter.”

There “should be a defense counter-weight to the Solicitor General’s office in criminal cases before the Court,” Green said.

Many of the functions described in Booker’s bill “are now performed by volunteers who are spending nights and weekends trying to help out because it is the right thing to do,” Green said.

“Formalizing and funding those efforts would also be the right thing to do.”

But Green said he’s uncertain if the current structure of the Defender Office for Supreme Court Advocacy — modeled after the Solicitor General’s Office — is the best way to achieve the counter-weight.

Notably, the proposed Defender Office for Supreme Court Advocacy would be organized as a federal corporation rather than as part of the Administrative Office of the U.S. Courts, like the federal Defender Services is.

Waters said that the organization of the new office was intentional.

“Like the Office of the Solicitor General (which is located in the executive branch of government), Sen. Booker wanted to create an office to advocate for criminal defendants that was independent of the judicial branch,” Waters said.

“That would help boost the credibility of the office to the Supreme Court,” she said.

“In contrast, by placing the Office in the Administrative Office of the U.S. Courts, which is located in the judicial branch, you lose some independence,” Waters said.

A spokesman for the AO said the office had “just learned of this legislation and is reviewing it.”

“Ultimately it would be up to the Judicial Conference, the federal judiciary’s policy-making body, to determine whether to take a position, and if so, what that position would be,” Charles W. Hall, Administrative Office of the U.S. Courts, Washington, told Bloomberg BNA in an e-mail.

The Gideon Act — named after the landmark Supreme Court case that first recognized a Sixth Amendment right to counsel in a criminal case, Gideon v. Wainwright, 372 U.S. 335 (1963) — was referred to the Committee on the Judiciary on July 7.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com