Does Darrow Favor Crime?

Gerry Darrow has never taught at a law school, authored a law review article or given an address to bar groups about his views on the law. In his 17 years as a practitioner, he's been too busy in courts of law representing folks injured in car accidents or accused of crimes to take a broader view of the law. As the Senate considers his suitability for a seat on the Supreme Court, critics wonder just what the man believes about the role of courts in our society.

"I cannot help but wonder whether Mr. Darrow has a soft spot in his heart for deviants and criminals," said Senator Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee. "I mean, did he ever serve the government as a lawyer? Why only those accused of crime?"

Session's office released this week briefs Darrow wrote in a Connecticut case involving the rape of a child. Darrow asked the court to prohibit the child from testifying against her accused. "Does it make sense in this state to say that a nine-year-old child cannot enter into a binding contract but that her word is sufficient to send a man to prison for life?," he wrote.

In another case, Darrow pleaded with the court to permit a man convicted of a brutal carjacking and rape to serve a sentence short enough to permit him hope of leaving prison while alive. "Judge, my client is nineteen years old. He has an entire life ahead of him. Is it too much to ask that he have the hope of someday, when he is old and bent by time, walking among us and seeing the Sun set on without looking through prison bars?" The youth was sentenced to 85 years in prison, a result Darrow told reporters was "shocking."

"These sentiments, these arguments, are shocking," Sessions said.

Others see it differently.

"No one raised questions when Sonya Sotomayor was nominated that she was unfit because she had served as a trial prosecutor earlier in her career. Wouldn't it hold that a constitution seeking to place limits of governmental power should render as unfit to serve a person who sought to assert that power?," said Robert Fogelbeak, former president of the National Association of Criminal Defense Lawyers. "Sessions' assertions are absurd."

The parsing of a judicial nominee's statements about the law and courts before becoming a judge are often controversial. Last week, journalists scoured over the public and not-so-public record of tandem nominee Elena Kagan to try to learn her views. But the record was opaque: she appeared right of center on freedom of speech, cautious on abortion, and seemingly without public views on the range of issues that typically occur in a court of law. In 25-years of legal career she appears never to have stood beside a client in a court of law.

"At least Darrow has a record of courtroom accomplishment," said Julius Nugent, a lawyer familiar with Darrow. "He has served as an advocate for his client. That's the role of a practitioner."

Some question whether a non-practicing lawyer can become an effective jurist.

"A judge without courtroom experience is like a sprinter confined to a wheelchair," said Scott Minefield, an influential blogger on legal affairs. "Sure, you can describe the race and the attributes of who should win: The fastest man out of the blocks and capable of sustaining his lead wins. But that's mere pap."

Kagan would not comment about her qualifications, and spent the week locked away with Senators who will vote on her nomination. Reports indicate she is charming, engaging, a good conversationalist and gracious.

Darrow, by contrast, spent his week in court, trying the case of a man accused of a residential arson. To the dismay of his White House handlers, Darrow speaks freely with the press.

"Mr. Sessions seems like an all right kind of guy," Darrow said. "I am sure his heart is in the right place. But reading my briefs to see what I believe is sort of a waste of time. I am an advocate for my clients. My role is not to assert my views of the law into a case so as to advance some pet or idiosyncratic version of legal theory," Darrow chuckled. "Here's an aphorism for you: Practice conceived isn't theory relieved. The law is not theory. There are no philosophers pleading a client's case."

The Senate is expected soon to hold simulatneous hearings on the nominations of Darrow and Kagan. President Obama's nomination of Darrow sparked revolt and controversy among legal scholars and court personnel, prompting Obama to nominate a more mainstream candidate to be evaluated alongside Darrow.

"Let's let the people decide what sort of the Court they want," the president said. "I heard voters ask for change in November. I think Darrow represents change."

Darrow v. Kagan: Contrasting Candidates

It is a tale of two nominees, one the golden child of doting Upper West Side, Manhattan parents, seemingly destined for great things and expensively reared and educated, the other largely self-made, the product of two blue-collar workers struggling to get by in Detroit. While the child of Manhattan soared through the world's most prestigious educational instutions, Detroit's child struggled to get through middling sorts of institutions. One worked as a law clerk, professor and dean, the other represented folks injured in accidents and accused of crimes.

Question: Which background reflects the lives of ordinary Americans?

The contrast between Gerry Darrow, President Barack Obama's startling dark horse nominee to the Supreme Court, and what observers now call the "tandem nominee," Elena Kagan, is apparent even in the demeanor of the two nominee as they find themselves now in the public eye. On the day after her nomination was announced, Kagan looked gleeful, a beaming, almost child-like grin animating her features: at last, the long wait was over, she had been picked for a job she had wanted since at least high school. The ambition of a lifetime to which she had bended every fiber of her considerable talent was to be fulfilled. Childless, without a spouse, a self-proclaimed workaholic, Kagan seemed at once, finally to relax.

Darrow was nominated at a press conference on the steps of a federal prison. He walked from the press conference into the prison to visit a client. In the days after his nomination, Darrow appeared daily the courtrooms of the small community in which he struggles, as public defender, to keep chaos from overcoming the lives of his clients. His demeanor far from gleeful, he looked almost stunned. "I am not worthy of the honor," he told a judge.

"Putting the contrast in terms of life experiences, Gerry Darrow is clearly the more recognizable," said Senator Patrick Leahy, D-Vt, the chairman of the Senate Judiciary Committee. "But the Senate is not an elective office. This isn't a demographic contest. Elena Kagan could bring superior intellectual fire power to the Court."

The nomination of Darrow was met with protest among the law's elites. Federal law clerks staged a one-day work stoppage. Law schools at Harvard, Yale and Stanford seemed in mourning, as students wandered the halls in shock, all but muttering alound about barbarians storming the gates. Some wondered whether the decision of the United States Supreme Court to close its mamouth front doors to the public was a symbolic protest against the appointment of a trial lawyer to the high court.

This week, President Obama nominated Elena Kaga, a former dean of the Harvard law school, as a so-called "tandem candidate," a move unprecedented in the nation's history. Was the president signaling a lack of confidence in Darrow?

If he was, Senators didn't appear to notice.

"Kagan is no doubt brilliant," said Republics Senator Jeff Sessions of Alabama. "But she's got no apparent track record. At least we know who Darrow is. Kagan looks like the geriatric version of a summer staffer, all elbows and ambition. But simply being here isn't enough. What does she believe about the law's role in our life?"

Efforts to humanize Kagan were at once apparent. The New York Times reported that she can be a scatterbrain, and has from time to time left her car running overnight as she walked away from it deep, apparently, in thought. The paper even went so far as to find it noteworthy that she smoked cigarettes as a teenager. A picture was published of her struggling to swing a baseball in a softball game at the University of Chicago.

"I thought I was reading the Onion," a satirical Internet publication, "as I read the Times piece," said Sandra Whaling, dean of the Thomas Cooley Law School, from which Darrow graduated. "She smoked? Oh, my, and she loves Jane Austen, too. I mean, really. Is a clinical profile of someone with social Asperger's syndrome?"

Darrow himself seemed intimidated. "She's pretty impressive," he said. "You almost never see someone like that in court. Folks like her get to spin the webs the rest of us try to untangle when those webs snare a client. But I got to hand it to her, wow, she's got a great looking resume."

Kagan supporters hailed her nomination as a sign of diversity. "She would be the only nominee never to have served as a judge. She brings diversity to a court comprised wholly of former jurists," the Harvard Daily News editorialized. But this diversity claim appeared lost on Darrow supporters: "Diversity? Another Ivy League star who clerked on the Supreme Court, got lost for a year or two in a megafirm and then went on to academia? When I think of diversity on the court, I think of appointing a lawyer who has actually tried a case in a courtroom, someone who has actually represented a person in a conflict. Is anyone up there in that league?" asked Scott's Minefield, a prominent legal blog.

As the Senate Judiciary Committee prepares for nomination hearings, legal interest groups suddenly found themselves reading trial transcripts to get a sense of Gerry Darrow's demeanor and intellectual acumen. "He can talk the ears off an elephant," said one staffer. "It's refreshing to see the law in action."

Legal interest groups, however, returned to familiar terrain. "I need to know whether Ms. kagan is prepared to honor the intentions of the Founders or whether she's the sort of activist who believes in a living constitution," the director of legal research for the Federalist Society said. "The nomination process is really a test of constitutionali infidelity."

When asked about the Federalist Society's concerns in a break during an arson trial in New Britain, Darrow paused for moment, smiled, and then said: "That's just stupid. I can't imagine a more activist approach to reading the document than restorting to a Quija board to figure out what dead people think. Who do these people think they are kidding?"

Kagan could not be reached for comment. She was rumored, however, to be enjoying a cigar, a rare indulgence, the Times reported, as she read briefing papers on the various Senators with whom she will be meeting in days to come. Even in the white glare of new-found fame, the contrast between Darrow and Kagan was obvious, and glaring.

For more complete coverage of the Darrow nomination click here.

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Kagan Tapped As "Tandem Nominee" For Court

The Senate Judiciary Committee today announced that it would only consider the nomination of Gerry Darrow for a seat on the United States Supreme Court if the president also submitted the name of a more conventional candidate to be considered at the same time.

In a terse, one-line announcement, President Barack Obama relented. "I submit a tandem nominee, Elena Kagan, for the Senate's consideration," the president said.

The move is unprecedented and may well sound the death knell for Darrow's chances for a seat on the high court. "The more customary course in our history is for the president to submit the name of one nominee at a time," said Carswell Bork, a professor of constitutional history at Yale University. "Although the Constitution does not prohibit the submission of two names at once, the president's decision to do so could well be taken by the Senate as a lack of confidence in Darrow."

"Nonsense," said a White House spokesman. "The president promised change. We are building new coalitions. We're happy to provide two names in tandem so that the nomination process does not get bogged down. But the president stands committed to placing a trial lawyer on the Supreme Court."

President Obama stunned observers last month by nominating the 42-year-old Darrow to fill the seat of retiring Justice John Paul Stevens. Darrow, a virtual unknown among the bar's elite, has worked as a personal injury lawyer and a public defender. He now practices in New Britain, Connecticut, where he represents indigent people accused of felonies.

In announcing Darrow as a nominee to the high court, Obama noted that he was redeeming his promise of change. "Mr. Darrow has worked in the trenches. He is not a legal theoretician, but an experienced trial lawyer. His appointment signals my administration's commitment to pragmatic reform of the legal system."

Darrow's nomination was met by protest at the nation's elite law schools. "Who is Gerry Darrow?" became a theme of class boycotts at the institutions, whose graduates typically go on to assume legal clerkships for the nation's federal judges. Darrow graduated from the Thomas Cooley Law School in Lansing, Michigan.

Last week, federal law clerks staged a one-day work stoppage to protest the nomination of Darrow. "While accomplished as a trial lawyer, Mr. Darrow has no apparent appreciation of the law's deeper structure or its ideals," a manifesto delivered to the Federal Judicial Center read. The clerks demanded that the president nominate one of their own to the high court.

The nomination of Kagan, the current Solicitor General and a former dean of the Harvard Law School, appears to be a response to the backlash against Darrow.

"Kudos on Kagan," a headline announced at the Yale Daily News. The endorsement was surprising, as Kagan is a Harvard Law School graduate, and the rivalry between Yale and Harvard for top spots in the law is often intense.

"Practice conceived isn't theory relieved," responded one White House staffer. "We're trying to eliminate gap between theory and practice on the Court. Darrow does that. Kagan is just another bridge to nowhere."

"Well, I suppose there's no harm in tossing Kagan's hat into the ring," Darrow said. "But I don't recall her ever appearing in court to argue on behalf of some ordinary person getting screwed to the wall by a corporation or a government. She's a power lawyer, not a people's lawyer. Haven't we had enough vanilla on the court?"

Kagan appears on behalf of the United States Government before the Supreme Court, but is not known to have appeared in other courts on behalf of non-institutionalized clients. "Brilliance isn't enough," read the headline of the lead editorial in The Detroit Free Press today. "Ms. Kagan does not represent diversity," the paper said. "She's just another brand of vanilla on a court distressingly homogenous and detached from the concerns of Americans who face each day without the an ivy laurel perched on their brow." The Free Press called on the Senate to confirm Darrow.

Senator Patrick Leahy, D-VT, the chairman of the Senate Judiciary Committee, promised that both candidates would be fairly vetted. "I suspect that Kagan is the safe choice," Leahy said. "But I am not sure what the American people want is safety. Most folks feel the current court views the government as too big to fail. The people want a fighter on the court. Someone who realizes that government can and should fail if it cannot meet the needs of ordinary folks."

Jeff Sessions, R-Ala., the ranking minority member of the committee appeared puzzled. "Two candidates instead of one? This is unprecedented. The most important question on my mind today is whether this what the founders intended. I'll be reading my Constitution extra carefully in the weeks to come."

Did Darrow Nearly Flunk Constitutional Law?

Did Gerry Darrow nearly flunk constitutional law?

It turns out that President Barack Obama's nomination to the Supreme Court received a near failing grade in the year-long course on constitutional law while a student at the Thomas Cooley Law School in Lansing, Michigan. The nominee received a grade of C- in the course. "That's one step from the academic death penalty," said Robin Roundtree, the professor who taught the course. She claimed to have no memory of the exam.

Darrow, on the other hand, recalls the exam well.

"I went to law school because I was amazed at what government could do to people. I figured there had to be some limits somewhere. So I took the text of the Constitution seriously. I guess that was a mistake," he said with his characteristic smirk.

Darrow is a a public defender and former plaintiff's lawyer now representing indigent defendants in New Britain, Connecticut. President Obama's nomination of the unconventional trial lawyer to fill the seat being vacated by the retirement of Justice John Paul Stevens sent shock waves through the legal establishment.

"My sense of the Constitution is that it is a defining document, and that is represents a contract among strangers. It is a compact that established a government of limited powers," Darrow said. "Yet throughout the course, there seemed to be a bias in favor of ever-expanding government. Sure, the separation of powers doctrines provides a set of checks and balances of one branch of government against the other two. But it struck me then, as it does now, that all this pocket pool among government workers takes place at the expense of the people."

Darrow noted that throughout the class he hungered for "just one case" that gave meat to the Ninth Amendment. Calling it the "people's amendment," Darrow characterized it is retaining for the people those rights not explicitly delegated to government. "The high court has never given teeth to that amendment," Darrow said.

So in his constitutional law exam, Darrow wrote an extended essay on Hobbes, Locke and Rousseau, and the so-called social contract theory. He characterized modern constitutional law as "Hobbesian in character," giving to government powers never intended by the framers of our republic.

Elena Kagan, who was passed over the nomination in favor of Darrow, was scornful of Darrow's comments. "This is not the way law is taught. It flies in the face of accepted constitutional theory," she noted. Kagan is former dean of the Harvard Law School and Solicitor General of the United States.

"Has she ever represented a client screwed to the wall by some government bureaucrat?" Darrow asked. "Oh, wait," he chuckled, "she represents the government."

"Elena Kagan is a sharp tack," Darrow said. "But she's a courtroom greenhorn. I think the president nominated me to move away from the the plantation theory of justice -- you know, the theory that holds the professors, deans and wealthy lawyers know best."

During his career as a lawyer, Darrow appeared in hundreds of cases at both the trial and appellate level, arguing constitutional issues in most cases. "Sure, I can use the dessicated doctrines of the legal elite when I have to. But the challenge of the law is translating academic law into law that matters on a pragmatic level. A courtroom is no place for a professor," Darrow said.