Democratic Presidential Candidates Should Promise to Appoint This Kind of Judge to the Federal Courts
Published in Slate
Since the Supreme Court decided Gideon v.Wainwright in 1963, states have been required to provide a government-paid lawyer to criminal defendants who cannot afford one, and for nearly six decades Gideon has been a celebrated part of this country’s constitutional bedrock. But last month, Justice Clarence Thomas took a narrow case about the right to appeal criminal convictions and turned it into an attack on the entire Sixth Amendment right to counsel. Thomas’ effort to undo a central criminal justice system safeguard speaks to a sad truth about our courts: Too few judges have any experience representing indigent criminal defendants, and without more public defenders on the bench, the rights of criminal defendants can never be fully secured. This is hardly a new problem but it has been exacerbated by Trump, who has yet to appoint a single public defender to the federal bench.
The parties in Garza v. Idaho, the Supreme Court case decided last month, did not question Gideon, and they did not question that defendants have the right not just to any lawyer, but one that is competent and effective. All of that was assumed. But Thomas didn’t care. His dissent, joined in full by Justice Neil Gorsuch, argued that Gideon was wrongly decided because it exceeds “the original meaning of the Sixth Amendment.” According to Thomas and Gorsuch, the Constitution does not actually provide the right to a lawyer at all; it protects only the right to hire a lawyer if you want one. In other words: The Sixth Amendment only protects the rights of rich people.
As Andrew Cohen wrote for the Brennan Center, the dissent calls for reversion to a system “that generated even more wrongful convictions than are generated now” and to a time “when indigent defendants had no hope of being fairly represented.” Thomas and Gorsuch claim that state and federal governments would fill the gap left without the constitutional right to counsel. But in the real world, even Gideon hasn’t ensured adequate resources to protect the legal rights of defendants; today, a typical public defender already has two to five times as many cases as she can reasonably handle, a crisis in our justice system that would only deepen if the views of Thomas and Gorsuch prevail.