Moving To A New Site

Rumors of my death, as Mark Twain once said, are greatly exaggerated.


I've not published much on sex crimes in the past couple of months. After a long summer vacation, I returned to the practice of law and trials in non-sex cases. Gerry Darrow's antics have been a whole lot pressing than my own.

I've also decided to move to a new web host. You can find me at: http://www.pattisblog.com/. I will no longer have a separate page for Who Is Gerry Darrow, but have moved all of this content to that page. It is listed under the topic labelled "Who Is Gerry Darrow?"

I hope to see you on the new page.

Darrow Pokes At Judiciary Committee

Senator Leahy, Senator Sessions, other members of this committee, my name is Gerry Darrow, and I am here today to answer your questions. I won't evade or hide any inconvenient truth or attitude from you or the American people. But before I answer your questions, I have a few for you. The mere posing of these questions will shed great light on my philosophy and temperament. What you make of me will determine whether I become the newest justice on the Supreme Court. I respect your right to make this decision.

Is there a one of you here who would trade the power, prestige and affluence you now enjoy to establish a new secular order? I looked at a dollar bill the other day and I saw the promise of something new printed right there on the back of it. Yet the nation groans now beneath the same historic weight of rich versus poor that from time to time brough Rome to its knees. Is ours a new order any longer, or are we now simply another in a series of nations that have betrayed the energy of its founding? The world groans in poverty and despair, and we ignore it.

The people I represent cry out for justice. They've learned to settle for laws that are often written behind closed doors, bought and paid for by lobbyists wearing suits that cost more than they spend in a year on a wardrobe. Banks fail, and you bail them out. The people fail and tumble and you are not there to catch them. Folks no longer look to these chambers for hope. Instead this one fiddles a sad tune about the intentions of men who rode in horses and buggies, while that one hums a silent tune of praise to his campaign contributors. I came here today with a heavy heart, and longed to find just one money chamber's table to turn over. That's my America, an open wound you refuse to look at, much less treat.

I am, Senator Sessions, a trial lawyer. I learned my trade yoked to the law, as you put it in your remarks this morning. The law's doctrines have broken men and women standing next to me. Some have killed in a rash moment and we called it murder. Others have taken by force what you would not give by law and we call it robbery. Despair and lack of hope have led many to dull their pain with alcohol and drugs. My American is filled with people just getting by and wondering why they should give a whit about whether either of your parties prevails. I know the law, Senators. The law is too often deaf to need; it serves power.

Can any of you tell me what justice is? Can you tell me, Senator Kohl? What is justice, sir?

I cannot tell you that I know. I agree with Clarence Darrow: "There is no justice in or out of court." What there is is conflict and the resolution of conflict. Life is a struggle between those who have and those who do not. It has always been that way. It will alwys be that way. It is that way today. How often do debates in this very room pretend it is otherwise?

I did not attend an elite law school. I have never clerked for a judge. I've never set foot in the office of an elected official. I am not a professor or a dean. I am a lawyer. I read the laws you pass and I know that you don't have a single intent, often many of you have not even read the laws you vote on. What I read of your debates tells me there is little on which you can agree. No, I read the law and then I look to my client to see what he or she hopes for in the struggle that brings them to me. Then I used the law to fight to get them what they want. My clients have interests; they are not members of a party with an agenda cast in sweeping policy terms. They bleed. Have you ever seen corporate blood, Senator Hatch?

Senator Leahy, I heard you say in your opening remarks Constitution was intended to last for the ages. ow much longer do you think we really have? How many Americans don't vote because the outcome of an election doesn't matter? How many have given up hope of finding a job? For how many Americans have the material circumstances of their lives led down the dark path of mental illness? Not one of you can truly answer these questions. You don't know the answers. It is not that you don't care. It is simply that your America is a world of well-set tables and manners. Mine is that of the stable and litter-strewn stoop.

You want to know my view of judging? I'll be honest with you: I'm not sure I have a settled view. I've been too busy trying cases to adopt one, or even to give the matter much thought. Perhaps it is easier to say what my view lacks. I bring no predisposition to how the Constitution should be read. Strangers meet on a street and are knit together by the law's silent chords. The Constitution is the primary chord. It must bind high and low in the same bundle. The social contract must be struck each generation anew; we always poor new wine into old skins. When those skins break, we remake them, one at a time. As judge my job will be to decide the case before me in a principled manner, using the best material at hand. It is the litigants' job to bring me the brick and mortar with which to build. I come to this Court with empty hands and an aching heart, nothing more.

I believe in the separation of powers. This is a republic. The courts stand removed from the passions of the day. When you are swept by the day's events and act too rashly as a legislative body, I believe it is the courts' role to say "Not so fast." Do not expect deference from me for all that you do. The federal government is a government of limited powers; yes, commerce has changed the nature and scope of our lives, but the fundamental commitment to the dignity of the individual remains sacrosanct. I believe the Court is the guardian of that dignity. I believe my experience as a criminal defense lawyer has taught me to love the flame flickering within each breast.

We are all summoned from the unknown and take shape, live and then die in a community of strangers. The law makes false friends of us all. There should be no berth in our society so low that the mightiest would scorn to occupy it if chance had cast his lot to the lower order, rather than the highest. The law knows no friends, and its only enemy is the man without law, the man who sets himself apart. I worry, Senators, that you are apart, and that you serve an often silent elite the scorns those you never really see from a room with as pretty a setting as this.

Do I want to be a Supreme Court justice? Not really. I could live without the honor and the power and the prestige. When I walked into this room and saw the lights flashing I felt like a fool. Me, a middle aged man now a rock star, with groupies attending my every step. I saw some of you smile when you entered the room. Have you come to love your comfort perhaps more than you should?

I am not a member of any political party. I rarely vote. I pay my taxes, work, love my wife and kids, and read in the silent evenings I can steal from my clients' needs. I am no more than this, but in this I am independent. I will serve if chosen because I have been asked to do so. This is not a position for which I have groomed myself from youth onward. In truth, I never set a path for myself that required me to sacrifice my peace of mind. If selected, I will read the law, read the briefs submitted, question the lawyers who argue before me, and press my client to give coherent accounts for their opinions. Then I will do my best to decide each case according to such principles of right, precedent and law that I can discern.

Will this make me a good justice? I do not know. I will be an honest judge, the sort of which a litigant can say: "He listened, and I understand why he decided as he did." There is nothing more I can aspire to, and, frankly, nothing more to say on the topic.

Thank you for listening to me. I await your questions.

Darrow Promised "Frank Talk" At Confirmation Hearing

Supreme Court nominee Gerry Darrow held a surprise press conference this afternoon, bidding reporters to "Ask me anything." Across town, co-nominee Elena Kagan, was hidden away from the press with White House handlers, in preparation for the confirmation hearings set to begin Monday before the Senate Judiciary Committee.

President Barack Obama stunned the nation earlier this year when he nominated Darrow, a Connecticut public defender, to the Supreme Court. To mollify critics of his decision to nominate such an unconventional candidate, the president then nominated Elena Kagan, the Solicitor General and a former dean of the Harvard Law School. "Let the people choose," Obama said, setting the two candidates for office on a potential collision course in this week's hearings to select a replacement for Justice John Paul Stevens.

"Of course, there can be but one Justice," Carswell Redding of the Cato Institute said. "The president's decision to nominate two contrasting candidates is unprecedented in our history. I'm not sure how the Senate will respond."

Darrow seemed unconcerned about the Senate reaction on Sunday, laughing as reporters peppered him with questions.

"Original intent? Beyond efforts to preserve liberty by creating checks and balances and limiting the reach of the federal government, I don't think Tom Jefferson has a whole lot to say. He's been dead a good long while, hasn't he?," Darrow said when asked about original intent. "Scalia's a bright guy," Darrow said of Justice Antonin Scalia, a proponent of trying to tether the Constitution's meaning to the intent of the framers, "but he should have gone to divinity school, or maybe taught biology in Dayton, Tennesse."

"That's right up there with the Tooth Fairy, in my view," Darrow then said about a recent Court decision giving to corporations unlimited rights to contribute to political campaigns. "Corporations aren't people. Never were. Can't be. They're simply fictions designed to limit risk for necessary investments. The decision is a disaster," he said of the case, called Citizens United.

Darrow's free-wheeling style and easy-going demeanor are expected to mark a contrast to Kagan's reserve and polish. Whereas Kagan has spent the past six weeks courting Senators in private one-on-one meetings, visiting more than 60 at last count, Darrow has kept busy at work in the Connecticut criminal courts. Last week, Darrow tried a drunken driving case, winning for an acquittal for a man the police found passed out behind the wheel of an idling car. "The statute says you have to prove operation. No one saw him driving the car. He had an empty bottle on his lap. I guess the jury concluded he drank it as he sat looking out at the water," Darrow said with a shrug. "It's hard to figure on juries, not that Kagan would know much about that."

Legal experts doubt Darrow has much of a chance of confirmation. His style is often blunt, even confrontational, character traits honed in the one-on-one combat of a courtroom. Darrow was once held in contempt when a microphone picked up a comment he made a little too loudly during closing arguments in a murder case. "Bullshit," he said of the prosecutor's closing. He later apologized.

But placards carried by demonstrators outside the Court during Darrow's press conference suggest some support for the trial lawyer. Several people carried large photographs of Kagan with a large X over her face. "Just say no," the signs said. "It's time for a people's lawyer," said other signs.

"Look, I know I am not the choice of insiders," Darrow told a reporter. "But we've heard so much coded cow dung at confirmations over the past couple of decades I am pleased as punch to sit there and give the Senate some straight talk."

"How would I vote on Roe v. Wade?" he asked. "Aren't you going to ask? Well, let me tell you: I don't want any government poking around between my or my wife's legs. You'll get yourself shot doing that. I suppose that what tells you what I think about the Second Amendment, too," he said with a wink.

Darrow clearly seemed to be enjoying the press conference, pausing frequently to shake hands with well wishers and the curious.

"I'm looking forward to tomorrow. But I'll bet Kagan isn't. She locked up somewhere studying how to talk and not say anything. Haven't we had enough of that? I'd say we need a little frank talk for a change."

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."