ACSBlog

by Jeremy Leaming

The U.S. Supreme Court that issued the opinion in Gideon v. Wainwright finding that criminal defendants have a constitutional right to counsel even if they cannot pay for it was a high court unwavering in its efforts to ensure that equal protection under the law applied even to the powerless and marginalized.

Today’s Supreme Court, said UNC Law School Professor Gene Nichol at a recent symposium at Harvard Law School, is very different and in many respects reflects the nation’s treatment broadly of people in poverty. The present high court’s proclivity, Nichol said, is to intervene as the “sword-carrier, and lieutenant and hand-maiden, and aide-de-camp of the powerful and economically privileged."

Nichol, speaking at a symposium on Gideon and on the need to extend more legal services to civil litigants hosted by the Harvard Law & Policy Review and ACS, gave a broad and damning assessment of the way the legal system separates the poor from everyone else.

Fifty years ago, the Supreme Court led by Justice Hugo Black held in Gideon that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” This right applied to the states Black concluded in part because of the Fourteenth Amendments requirement that government not deprive people of liberty.

“The Gideon decision’s obvious truth – disturbing, challenging, indicting, and still obvious in truth: ‘The right to be heard would be of little avail if it did not include the right to be heard by counsel. Even the educated and intelligent layman has small and sometimes no skill in the science of law. He in incapable of determining whether the case against him is good or bad, he’s unfamiliar with the rules of evidence, he lacks the skill and knowledge to prepare his defense though he might have a perfect one. He requires the guiding hand of counsel at every step of the proceeding.’”

Nichol said Justice Black’s wording reminded him of the mantra spoken by his friend, the late Sen. Paul Wellstone that, “It is important not to separate the lives we lead from the words we speak.”

The professor then turned to what he described as one most searing defects of the nation’s legal system, the treatment of poor litigants.

“Millions of poor litigants … are denied every day in every court, in every court system, in every state at every level of this broad nation, a foundational right to a meaningful hearing, at a meaningful time before forfeiting constitutionally secured interests. The largest single defect of the American system of justice; making mockery of the phrases etched on our courthouse walls, providing the great American asterisk, the delegitimizing asterisk: Equal justice for those alone who can pay the ride of significant fare” requiring “an annotation of our boastful pledge – Liberty and Justice for half. That is too generous, I know.”

by Jeremy Leaming

Sri Srinivasan, President Obama’s second nominee to a vacant seat the U.S. Court of Appeals for the D.C. Circuit, sailed through yesterday’s Senate Judiciary Committee hearing largely because he did a masterful job of detailing his career, which offers few hints of an ideological leaning.

Yesterday, Adam Serwer, for Mother Jones, noted that very little is known about Srinivasan, other than he could be, if placed on the D.C. Circuit, a potential pick for the U.S. Supreme Court. If Srinivasan is confirmed, he will be the first South Asian American to serve on the D.C. Circuit. Serwer also touched upon aspects of Srinivasan’s legal career that might trouble progressives who believe the federal bench is in need of more progressive judges, instead of ones who cater to corporate interests.

Srinivasan said very little, if anything, to provide Republicans any cause to further delay his route to the D.C. Circuit. (Srinivasan’s hearing before the Committee came more than 300 days after the president nominated him.) He promised a fealty to precedent. And Republicans, such as U.S. Sen. Orrin Hatch (R-Utah), who helped scuttle Caitlin Halligan’s nomination to the D.C. Circuit, announced he would support the nomination.

Republicans like Sen. Chuck Grassley (R-Iowa), however, are bent on rebranding the D.C. Circuit as a court with too many judges and a light caseload. At the start of the hearing Grassley, the Committee’s Ranking Member, announced the introduction of bill to cut the number of active judges on the D.C. Circuit to 8 from 11. Grassley’s bill, co-sponsored by Republican senators Hatch, Jeff Sessions (Ala.), Lindsey Graham (S.C.), John Cornyn (Texas), Mike Lee (Utah), Jeff Flake (Ariz.) and Ted Cruz (Texas), claims, “It is no secret that the D.C. Circuit is the least-busy, least-worked appellate court in the nation.”

It appears Senate Republicans are preparing to give Obama one chance to put a judge on the D.C. Circuit and no more, leaving the D.C. Circuit likely tilting rightward, though at the moment it’s impossible to know exactly what if any ideology Srinivasan carries. Moreover, a confirmation is certainly not assured in this climate.