|Letter From Miriam Aroni Krinsky- |
Federal Judicial Nominations
|March 28, 2003|
Senate Judiciary Committee
Hon. Orrin G. Hatch, Chairman, Senate Judiciary Committee
Patrick J. Leahy, Ranking Democratic Member
Charles E. Grassley
Edward M. Kennedy
Joseph R. Biden, Jr.
Russell D. Feingold
Charles E. Schumer
Richard J. Durbin
RE: Federal Judicial Nominations
With more than 20,000 members, the Los Angeles County Bar Association is the largest metropolitan voluntary bar organization in the United States. One of the primary purposes of the Association is to further the administration of justice and to apply the knowledge and experience of our members to the promotion of the public good. In furtherance of these objectives, the Association traditionally has been actively involved in supporting a qualified and competent judiciary. That is why we have established, among other things, committees to review applications of judicial nominees to the California state Superior and Appellate Courts.
Within the last decade, under both Democratic and Republican administrations, the issue of federal judicial nominations has become increasingly divisive with often regrettable and unfounded attacks by organizations that, however well-meaning they may be, often have little knowledge or understanding of the nominees’ judicial abilities. Our Association has become quite familiar with the fact that certain nominees to the Federal bench have faced difficulties largely based on positions that the nominees have articulated as lawyers representing clients. Frequently these attacks are predicated not upon a nominee's judicial qualifications or personal views on issues, but rather on positions set forth in legal briefs drafted or co-authored by the nominees while acting as an advocate for a client.
As lawyers it is our role to be advocates. It is through the adversary system that we as a people and a country have determined that justice is best obtained for all litigants. In vigorously presenting our clients’ views, lawyers are professionally bound, subject only to ethical limits, to explore and present all arguments that may advance our clients’ cause. Our system of justice will not survive if these underlying principles are undermined. It is for these reasons that the courts and bar associations, when prescribing rules of conduct for lawyers, have repeatedly stressed the importance of having lawyers advocate with zeal and vigor the positions of their clients.1
The recent trend in attacking the qualifications of judicial candidates on the basis of positions advocated on behalf of clients is misguided for a variety of reasons.
First, neither the identity of a lawyer’s clients nor the zealous advocacy of their causes necessarily provides any insight into the lawyer’s personal beliefs, nor do they necessarily provide any indication of how a nominee may view a particular case presented to him or her as a judge. Indeed, representing clients whose views we may disagree with comes with the territory for many attorneys.
Second, these types of attacks will tend to discourage candidates from pursing judicial nominations. Lawyers who are well qualified may decline to submit their names for judicial consideration preferring not to subject themselves or their families to the protracted and often discouraging process that many nominees have experienced.
Finally, assessing a judicial nominee on the basis of client positions advocated may adversely impact the quality and availability of representation of unpopular or controversial clients and causes. Lawyers who may be inclined to pursue a judicial career will have to think twice about accepting the representation of clients whose positions may be politically controversial or, even more disturbing, they may decide against presenting a politically controversial legal argument on behalf of a client.
In sum, we urge that the Judiciary Committee give due consideration to those issues that are critical to assessing a nominees’ qualifications -- the nominees’ professional abilities, intelligence, integrity, experience and judicial temperament -- and not to those positions taken by nominees on behalf of their clients. Please feel free to contact me if our Association can be of any further assistance in regard to the critically important endeavor of ensuring a qualified and committed federal judiciary.
Very truly yours,
Miriam Aroni Krinsky
1See Gagnon v. Scarpelli, 411 U.S. 778, 787, 93 S.Ct. 1765, 36 L.Ed.2d 656, 665 (1973) (“lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views”); Hoefferle Truck Sales, Inc. v. Divco-Wayne Corp., 523 F.2d 543 (7th Cir. 1975) (“zeal and perseverance are the nuts and bolts of our adversary system and we encourage the members of the bar to fully explore every legitimate claim in a case”); People v. McKenzie, 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 471-472 (1983) (“the duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law”); Hawk v. Sup.Ct. (People), 42 Cal.App.3d 108, 126, 116 Cal.Rptr. 713, 725 (1974). See also preamble to ABA Model Rules 2; ABA Model Rule 3.1, Comment (1)]; ABA Model Code, Canon 7; EC 7-1; DR 7-101 (a lawyer shall not “intentionally . . . (f)ail to seek the lawful objectives of . . . (the) client through reasonably available means permitted by law and the Disciplinary Rules”; ABA Model Rule 1.2, Comment (1)–“A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf”).
cc: Senator Barbara Boxer