I am disappointed by Chief Judge Dennis Jacobs’ decision to target public interest and pro bono lawyers in his recent comments to the Rochester, N.Y., Federalist Society. I find two features of that speech, which he described as “provocative,” particularly worthy of comment.
First is the sketchy image Jacobs draws of the clients that public interest lawyers represent. In Jacobs’ vision of public interest lawyering, the client is not only subordinate; he or she is virtually imaginary. He describes clients of this “ferociously active” bunch as “not clients in any ordinary sense,” but rather “recruit[s]” whose own interests are “ marginalized and rendered superfluous altogether” by the “political interests of lawyers and activists.” An unfortunate lot, indeed!
You might wonder where public interest lawyers find the hapless pawns through which they tempt egotistical judges into expanding “judicial power and influence over hotly debated issues.” Jacobs knows — it is by “arousing . . . politically-targeted demographics” where lawyers “go shopping for useful clients” or “pay money . . . for the opportunity of litigating.”
Because Jacobs’ critique flows from the premise that clients merely fulfill a “technical requirement,” it is understandable that he fails to consider the value that victims of discriminatory government policies and actions place in having someone speak up for the injustice they face. His indictment of public interest lawyers’ motives simply overlooks the struggles of the workers, prisoners, parents and children whose struggles inform the work of public interest lawyers.
The 2d U.S. Circuit Court of Appeals must be a far different place from the 6th Circuit, because I cannot recognize among the cases before us the lawyers that Jacobs accuses of abdicating their responsibilities to clients to advance their own social agendas. Indeed, I am immensely grateful for the efforts of lawyers who represent very real clients in a variety of difficult cases — including in the broader “impact” litigation that Jacobs decries. In my view, the value of such representation cannot be overstated when litigation of an individual’s claim exposes systemic violations of the law. Regardless of the legal issue, the presence of experienced and qualified counsel lends stability and order to the proceedings before us.
A second puzzling aspect of Jacobs’ critique is his attempt to distinguish praiseworthy lawyers who practice in the “great tradition of volunteerism” from “anti-social” ones who sue the government and participate in impact litigation. According to him, the former group includes those who draft “wills for the sick,” while the latter group engages in tactics to promote “social and political agendas” in the courts. This group has, in his view, falsely assumed the mantle of working in “the public interest” — a distinction he sees as more properly belonging to government lawyers, who defend the policies of a democratically elected majority from legal challenge.
Jacobs’ gripe here reveals a narrow and singular view of “the public interest” and “the public good.” As Jacobs himself recognizes, “No public good is good for everybody.” But why then rail against advocates whose clients are attempting to prove that their legal rights to “the public good” have been violated? Just which “public good” was Jacobs referring to when he described himself as “appreciative about work done for the public good as anybody else”? Isn’t the “public good” equally represented by ensuring adherence to our precommitments to individual rights and the rule of law? I certainly think so.
Jacobs assumes that the status quo is the majority will or “right,” but is it so obviously so? Why, then, bother with a Bill of Rights in the first place? I do not question our elected officials’ intentions to act within constitutional limits to their powers. But our democracy provides safeguards when government actions fail to respect individual rights. The very existence of our Bill of Rights proves that we may anticipate that our government — being composed of men and women and not angels — will sometimes exceed the limits of its power. So we should not mock those who challenge the government when it violates our rights.
Though I may be reading too much into Jacobs’ comments, I find lurking beneath his charge of “anti-social” conduct the stronger assertion that it is somehow unpatriotic or anti-democratic to challenge government policies and practices through litigation as opposed to through purely political channels.
Majority view may be wrong
Calling into question the legality of the policies of the majority is not always a bad thing, and we should not forget that the government is an interested party in an adversarial system. As Dean Erwin Chemerinsky recently pointed out, there are plenty of instances of systematic violations of the Constitution that would have gone unremedied without litigation.
And under the Jacobs view, we would have to ignore complaints of, say, illegal wiretapping, racial profiling, deplorable prison conditions or unenforced mine safety regulations, confident in political resolution of these “policy choices.” The spectre that Jacobs seems to fear is that by having experienced counsel (or counsel at all) on both sides, we might actually get the cases right when the government missteps.
We owe an immense debt not only to those lawyers whose work fits within Jacobs’ definition of acceptable “volunteerism” but also to the courageous efforts of those who ensure that we hear the complaints of otherwise marginalized members of our society. Unlike Jacobs, I applaud their efforts. I encourage the ranks of passionate and dedicated lawyers to continue their work to expose the injustice their clients face and to promote the rule of law.
Boyce F. Martin Jr. is a U.S. circuit judge on the 6th U.S. Circuit Court of Appeals.
