A ‘Defender General’ for the Supreme Court?

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Supreme Court Justices Elena Kagan and Sonia Sotomayor believe that criminal defense lawyers with cases at the high court should let Supreme Court specialists handle the arguments, says the New York Times. “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,”Kagan said in 2014. Lawyers who appear often before the justices win their cases at a substantially higher rate than novices do. Persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court to a fancy appellate lawyer is easier said than done. “A lot of these cases, they’re pretty hard to win anyway. And what we see is that people are being represented by whoever the trial counsel was for a particular defendant,” Kagan said. “And appellate advocacy is hard, and it takes a lot of skill and a lot of experience.”

A new article in the University of Pennsylvania Law Review by Profs. Daniel Epps of Washington University and William Ortman of Wayne State University says, “criminal litigation in the Supreme Court is not a game played on a level playing field.” They say, “government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients — even when they conflict with the interests of criminal defendants as a whole.” Epps and Ortman propose a “defender general” office to counterbalance that of the solicitor general, who represents the federal government in the Supreme Court and sides against criminal defendants 95 percent of the time. The defender general would sometimes represent individual defendants or file supporting briefs on their behalf. It would represent the interests of criminal defendants generally, even when they diverged from the interests of the defendant in the case.

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