The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Republican members of the council that must approve judicial nominations rejected one nominee for a seat on a New Hampshire superior court because she did her job as a public defender.
Dorothy Graham worked as a public defender in New Hampshire. In this position, her job was to zealously represent her clients, generally individuals accused of crimes who could not afford or otherwise obtain competent defense counsel. She did not choose her clients, but she did work on their behalf. And because we have an adversarial justice system, the judicial process relied upon her to do her best to defend her clients in court, just as the process relied upon prosecutors to work zealously on the other side.
Like any public defender, Graham did not always have the nicest clients. Some of them were even quite despicable. Yet all were entitled to a defense.
Manchester public defender Dorothy Graham, whom Hassan nominated to the Superior Court, has twice attempted to reduce the sentences of child rapists on technicalities and, in one case, a "clerical error." She took those cases all the way to the New Hampshire Supreme Court with mixed success. . . .
Graham's history of defending child rapists caught the attention of Executive Council Republican member David Wheeler, one of five councilors responsible for approving judicial nominations. While he said he is sympathetic to the necessity of public defenders and that they do not get to pick and choose their clients, he saw Graham's pursuit of dismissals over "technicalities" as "disturbing.
"This is something that is very disturbing information and we need to look into it a bit further. The way I understand the facts is that this appeal was more of a minor technicality. If I was a defense attorney, my conscience wouldn't be able to handle that," Wheeler told the Washington Free Beacon. "The difference on [Graham's] case is whether the defendant's rights were violated in a serious way or whether it was really her trying to get a guilty person out of a penalty for his heinous crime."
I suppose it's a good thing David Wheeler is not a defense attorney, for he clearly does not understand how our justice system works.
The WFB attack served its purpose. It was picked up by the National Republican Senatorial Committee (because Hassan is preparing to run for the U.S. Senate) and gained currency in other conservative outlets. Graham's fate was sealed. Despite extensive support from the legal community and local law enforcement, the Executive Council voted 3-2 to reject her nomination.
Unfortunately, this is not the first time we've seen politicians engage in opportunistic attacks on attorneys for doing their jobs and representing unpopular clients. As I noted last year, the Republican Governors Association ran a scurrilous ad campaign against South Carolina gubernatorial candidate Vincent Sheheen along similar lines. And don't forget the attacks on Hillary Clinton for her work as a lawyer.
Groups on the left do this sort of thing, too. Republican judicial nominees, for instance, have been assailed by Democrats because they represented unpopular causes or politically unpopular industries. For example, progressive groups attacked district court nominee Mark Cohen because he helped defend Georgia's voter ID law.
Such attacks are wrong. Our system of justice relies upon the principle that everyone is entitled to effective legal representation, and attorneys should not be attacked or punished for serving unpopular clients. It is one thing to criticize attorneys for adopting unethical or unscrupulous tactics, but something else entirely to assail attorneys—or judge them unfit for a judicial post—because they fulfilled their obligation to a client.
As I've written before:
Our adversarial legal system depends upon the willingness of lawyers to represent clients of all stripes, including those who are unpalatable or politically unpopular. If attorneys are vilified for representing such clients—if the message to the politically ambitious is don't ever represent a client that voters might not like—fewer will be willing to take up the task. Conservatives recognize this when GOP nominees are attacked. They should also recognize it when the shoe is on the other foot.