Page 337 - Ad Hoc Report June 2018
P. 337

 Appendix M: Statement from Committee Member Professor Orin Kerr
I disagree with my colleagues on the Committee about one important recommendation in our report. This statement explains my different view.
My colleagues recommend that Congress should create a national defender commission modeled on the United States Sentencing Commission. Under their proposal, the national commission would be led by commission- ers nominated by the President and confirmed by the Senate. No more than four of the seven commission- ers could be from any one political party. No more than three could be judges.
None of us on the Committee are experts in the design of new federal agencies. Our expertise is in identify-
ing the existing problems with the Criminal Justice Act rather than recommending new government structures. With that said, I don’t think my colleagues have iden- tified the best way for national commissioners to be selected and who should be eligible to serve on it.
In my view, it would be better for the commissioners to consist entirely of federal district court judges selected by other judges. Here’s one way to do it: The district judges of each regional circuit could vote for a repre- sentative among them to serve a term as one of the commissioners. To ensure an odd number of commis- sioners, you could require two of the smaller circuits
to join together and elect a single commissioner. The enacting statute could also impose some requirements on the judges elected, such as past experience as a crim- inal defense attorney and a commitment to the criminal defense function. The result would be an eleven-mem- ber commission of federal trial judges that would serve the function described in our report
I think this approach is better than the Sentencing Commission model proposed by my colleagues because I am more pessimistic than they are about the poli-
tics of crime. My colleagues present the defense func- tion as largely free from political influence. In their view, the defense function enjoys bipartisan support and is unlikely to become a political target. Under
that assumption, they see little risk in giving the
elected branches the power to nominate and confirm commissioners.
My sense is different. I see it as unfortunate but inevita- ble that the criminal defense function will be subject to
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D
intense political winds. Voters don’t like crime, and they tend to favor politicians who will be tough on those who commit it. Politicians respond to that voter preference by often demanding tough laws that will fight crimi- nals aggressively. This dynamic was less pronounced in the 2012 to 2016 window, when an unusual amount of bipartisan consensus seemed ready to emerge on crim- inal justice reform after years of violent crime dropping precipitously. But I suspect that was a temporary state of affairs rather than a permanent change.
That’s a problem, I think, because it means that a federal defender agency will inevitably end up making some unpopular decisions that upset a lot of voters. Maybe the commissioners will decide to devote extra resources to the defense of a notorious terrorist charged in a hei- nous terrorist attack. Perhaps they’ll decide to appoint a particularly controversial lawyer as the Federal Defender for a particular district. Because its function will be serv- ing the needs of often-unpopular clients instead of the voters — and properly so — a federal defense agency would need to take some controversial public positions.
If I am right about that, elected politicians will at times target the defender agency. What we may see as uphold- ing the Sixth Amendment, others may see as trying
to help murderers and terrorists. And because those decisions would be centralized in a single agency with
a known list of commissioners and their public votes, there will be specific group of people to criticize. The agency won’t be targeted all the time, of course. And not by every politician. But I fear it will be a target for enough politicians enough of the time to matter.
If I am right about the politics of crime, my colleagues’ adoption of a Sentencing Commission model is prob- lematic. Under their proposal, one politician, the President, will pick nominees. One hundred more poli- ticians, the Senators, will decide whether to confirm the nominees. A President who wants to damage the agency could decline to make appointments, or else nomi-
nate candidates who lack a commitment to the defense function. Senators with the same wishes could refuse to confirm nominees unless they held particular views, or even refuse to act on any nominees at all. By controlling appointments to the commission, the elected branches will control the commission itself.
The Senate’s refusal to confirm nominees to the United
States unless approved by the Conference itself.
H O C
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