“Hey, when you leave, will you tell the bar rep with the gun outside my office what a good job I did for you? I can get bonus credit!”
Speaking before an audience at the American Law Institute, U.S. Supreme Court Justice Sonya Sotomayor said that she advocated mandatory pro bono service ( that is, for no compensation) to poor citizens by all lawyers. “If I had my way, I would make pro bono service a requirement,” she said.
“I believe in forced labor.”
This is the quality of thought that we get on the highest court in the land, that must decided our most difficult, controversial and society-molding legal. This is what we end up with when a Justice is appointed in order to check off group identify boxes for “diversity” rather than on the basis of ability.
Sotomayor made the comment at the American Law Institute’s annual meeting in Washington, in response to a question from institute director Richard Revesz about the problem of improving access to low-cost and effective legal services for low-income individuals. I’m pretty sure the “forced labor” comment was delivered as a joke, but it looks terrible in print, and immediately drew a predictable response from conservative pundits. “YOU BELONG TO THE STATE” quipped Instapundit’s Glenn Reynolds.
That’s what the quote appears to say, which is why Supreme Court Justices need to be more prudent in public forums. Does Sotomayor really believe that citizens should be forced by law to do what Social Justice Warriors think is necessary for the greater good? Who knows? It’s not the loopiest opinion I’ve seen come out of her. That she would say this at all, however, calls into question her judgment and reasoning ability.
How would we enforce such a law? Would it apply to all lawyers, or just some? Hillary Clinton is a lawyer. Obama is a lawyer. So is Sotomayor. Actually, nothing is stopping the Justice from doing pro bono landlord tenant cases right now. Why does she need to wait for a law?
[CORRECTION: I should have checked. In fact, most codes of judicial conduct prohibit judges from practicing law. Here’s the relevant section, 3.10, of Canon III of the Model Rules:
A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family,* but is prohibited from serving as the family member’s lawyer in any forum.]
Why just lawyers? Surely doctors should have similar mandatory duties to the state. Make accountants balance the checkbooks of the poor. Force professional athletes to be Big Brothers. Make citizens do good, be generous, be charitable. Of course, forced ethical conduct isn’t ethical; it’s just following orders and bending to force and power.
It was s dumb and reckless thing to say. “If I had my way, I would make pro bono service a requirement” tells me that she hasn’t thought through the practicalities and implications of what she’s advocating. That, in turn, tells me that her judgment is poor, and that tells me that she isn’t qualified to be a Supreme Court justice by intellect or temperament. There is also a little item called the 13th Amendment, which reads,
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Aside from the cheap jokes about lawyers being the equivalent of criminals, Sotomayor’s statement, taken at face value, indicates a less than sufficient familiarity with the Constitution.
The D.C. Bar’s Rule 6.1 makes the right statement, explaining the lawyer’s ethical duty to the community as a professional:
“A lawyer should participate in serving those persons, or groups of persons, who are unable to pay all or a portion of reasonable attorney’s fees or who are otherwise unable to obtain counsel. A lawyer may discharge this responsibility by providing professional services at no fee, or at a substantially reduced fee, to persons and groups who are unable to afford or obtain counsel, or by active participation in the work of organizations that provide legal services to them. When personal representation is not feasible, a lawyer may discharge this responsibility by providing financial support for organizations that provide legal representation to those unable to obtain counsel.”
That, however, is not forced labor.
I’d really like to hear Sotomayor’s statement put to all three the Presidential candidates in a debate, however; their answers would be instructive. My guesses at the responses:
Trump: “I love lawyers, I have lots of great lawyers, by the way, and pay a lot for them, believe me, a lot, and they do great things. So sure, I think they should do this, when they can, as long as these aren’t criminals or bad people. The justice system is a disgrace really, and I know how to fix it. I’m going to fix it, and it will be the best it’s ever been. Sotomayor is great by the way. Great. She’s one of the good Mexicans. She’s Puerto Rican? Whatever. She’s great.”
Sanders: “I absolutely agree that lawyers, who are among the richest in society, should have an obligation to do their share to reduce the inequality of our broken justice system, and that it is a proper function of our government to make sure that they do that! [Wild cheers from Bernie’s mob]
Clinton: [After being handed a slip of paper with Bernie’s quote, and being reminded that trial lawyers constitute one of the main Democratic constituencies and source for donations] “I have a long record of helping the disenfranchised, and this proposal deserves serious study and consideration. A special area that could benefit from such a requirement is the legal representation of the victims of sexual assault and civil rights violations like the ones being encouraged by Republicans in North Carolina.”
What does it tell us about someone when “forced labor” doesn’t set off an ethics alarm?
Ethics Alarms 
Damn, Jack–your guesses as to the candidates’ responses are dead on. If you didn’t have ethics, you’d make a great speechwriter for any of them.
Forced labor? Like jury duty?
Does the code of conduct allow federal judges to practice law?
Great question. And you are right: The Model Code specifically prohibits legal practice by judges, so she’s immune from having to take her own prescribed medicine:
Rule 3.10: Practice of Law
“A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family,* but is prohibited from serving as the family member’s lawyer in any forum.”
How convenient!!
By immune I assume you mean prohibited for good reason.
Off the top of my head I can see how it would be bad for the courts as a whole and the people involved if she were to act as an advocate. What if a judge doesn’t like the paperwork she filed? Would that damage SCOTUS’ reputation? What if a judge were reluctant to find fault because of her position? Her signature on the filings alone would create all sorts of questions about influence.
By immune I mean that a lawyer advocating forced labor for all lawyers other than herself is a hypocrite.
So would that be like someone who’s immune from pregnancy advocating that all people who become pregnant carry it to term?
You know, “carry to term” is not an active choice if you’re already pregnant. It’s kinda what happens automatically as long as you don’t kill your baby.
No, it would be like some one who is immune from pregnancy mandating that every one else get pregnant.
Jack,
“This is what we end up with when a Justice is appointed in order to check off group identify boxes for “diversity” rather than on the basis of ability.”
Would you say the same about Justice Thomas?
-Neil
No, because Justice Thomas hasn’t said unjudicial, emotional, embarrassing things like this in person or in his opinions. I didn’t say “This is what we ALWAYS end up with when a Justice is appointed in order to check off group identify boxes for “diversity” rather than on the basis of ability. A choice made for the wrong reasons sometimes works out unexpectedly or undeservedly well.
No question, Bush I’s nomination of Thomas was a nomination of “a Justice is appointed in order to check off group identify boxes for “diversity” rather than on the basis of ability,” and everybody knew it, including Thomas. His “crime,” however, has been his hard conservatism (and the fact that blacks aren’t allowed to be conservative in the eyes of many pundits and SJWs.) He has been a pleasant surprise otherwise, writing provocative and original opinions from his end of the spectrum. I wouldn’t say the same about Kagan, either, who was also a checkbox choice (female, gay). She’s a terrific legal mind by all estimations.
Jack,
A well-reasoned, logical answer. Thank you.
Doesn’t being a wise latina per se make her legally brilliant?
She certainly thinks so.
Jack,
One final question: Don’t most justices fall into the category of “checkbox choice,” even if not for demographic reasons? For example, Garland is older, moderate (something that many feel the court needs considering the current liberal/conservative split), sufficiently different from Obama’s other nominees to avoid criticism of pandering, and a strong statist (he tends to defer to the Federal Government).
The only reason I say so is that otherwise it SEEMS (suggestive of, but not necessarily stated fact) to set up the dichotomy that white and male is the “normal” choice (I realize that it could be called “normal” in terms of averages, but I’m using the term in the vernacular) while anyone else has demography issues to be considered.
If this question isn’t up to muster, please don’t answer it.
The only box that matters is “competent, objective, fair and respected jurist or legal mind.” After that is checked, any other boxes are fine: go crazy. Garland is a perfect example. Thomas and Sotomayor were the other kind. Substantive qualifications were secondary. It was affirmative action.
Thanks again.
A note from personal experience in the “forced labor” front.
In Mexico when an accredited institution grants a degree (B.A., B.S. or equivalent), they are by law instructed to require 200 hours of “community” service from the candidate. If you have completed your classes, earned enough credits, etc. it’s still not enough. (There are other requirements, but they’re minor, and the exact conditions are a Byzantine mess that’s irrelevant to the point I’m trying to make) ((Tangential note two: unless you want to be a doctor, then it’s 6 to 12 months at a village in the middle of nowhere giving “State-provided” healthcare))
I guess if we’re going to make the privileged pay back to society for this is one of the least bad ways to achieve it. You can philosophically debate the rule on it’s merit; but at least it is clear, well-known (drilled on all freshmen since day one of college) and once you’re done there is no further compulsion for service. I may not agree with everything, but at least this perspective has given some pragmatic laws that maybe the U.S. should consider in areas like healthcare (very basic free access for everyone, but nothing truly specialized) and voter ID (national registry, free to sign up, recognized by pretty much everyone).
Can you say “Selective Service Act”?
Special and specific exception, per the Supreme Court!
SUPREME COURT OF THE UNITED STATES
Nos. 663, 664, 665, 666, 681, 769
38 S. Ct. 159, 245 U.S. 366, 62 L. Ed. 349, 1918.SCT.40022
January 7, 1918
SELECTIVE DRAFT LAW CASES.*FN1
The highest duty of the citizen is to bear arms at the call of the nation. This duty is inherent in citizenship; without it and the correlative power of the State to compel its performance society could not be maintained. Vattel, Law of Nations, Book III, c. 2, §§ 8, 10. It is a contradiction in terms to say that the United States is a sovereign and yet lacks this power of self-defense. Hence, the power was expressly granted by the Constitution. Art. I, § 8. It is found in the power to declare war, which means a power to carry on war successfully, i.e., with the means necessary. Vattel, Book III, c. 2, § 7; United States v. Sugar, 243 Fed. Rep. 423, 436; Kneedler v. Lane, 45 Pa. St. 238. Also in the power to raise and support armies, which is conferred broadly, and without limitation, other than the restriction that appropriations to support armies shall not exceed two years. There is no provision limiting the means to voluntary enlistment. On the contrary, Congress is expressly empowered to use all means necessary and proper to carry out the express grant. Hence, the power to resort either to voluntary enlistment or to enforced draft is express. Selective draft is not only an appropriate means but under the conditions of modern warfare the most prudent, just, and equitable method which can be employed. That the power to compel military service is an incident of sovereignty appears from the custom of nations. Compulsory service is now exacted by practically all the nations of the globe. The compulsory draft was a normal method of raising armies in the United States in 1787 when the Constitution was adopted. It was expressly recognized in many state constitutions, was enforced by the States for local purposes in calling out the militia, and also for obtaining levies to fill the ranks of the Continental Army. The constitutions of five States during the Revolutionary War period express the principle of universal military service. Militia duty was imposed upon all arms-bearing citizens of the original thirteen States during the eighteenth century. The Continental Congress recommended it to the States as a means of recruiting the Continental Army; and the numerous statutes enacted pursuant to those recommendations [space will not permit of their citation here] conclusively determine the meaning which the framers of the Constitution attached to the power to raise armies. The history of this clause in the Convention shows a definite intent not to limit the nation to voluntary enlistments. Supp. Elliot’s Debates, vol. 5, pp. 378, 379, 443, 510, 511, 553; Farrand’s Records of the Federal Convention, vol. 2, pp. 323, 330, 505, 509, 570, 595. Several of the States, in ratifying the Constitution, proposed amendments to limit the power of Congress to raise armies by draft, Journals of Congress, vol. 13, appendix, pp. 176, 184, Folwell’s Press, 1801; Elliot’s Debates, vol. 1, p. 336; vol. 3, p. 659; vol. 4, pp. 242, 244, 251, 252; and their rejection shows not only that the language employed was intended to include the power to draft but also that this was the contemporary interpretation. A prime object of the Constitution was to cure the impotence of the Continental Congress directly to require military service from the citizens of the States. Articles of Confederation, 7, 9 (1 Stat. 6, 7); Federalist, No. 22, p. 143, No. 23, pp. 152, 153; 7 Sparks, Writings of Washington, pp. 162, 167.
[15] Our national history demonstrates the existence of the power by its exercise. It was resorted to in the War of Independence and by both sides in the Civil War; near the conclusion of the War of 1812, James Monroe, then Secretary of War, submitted to Congress a draft bill with an unanswerable argument supporting the power. See Niles’ Weekly Register, vol. 7, p. 137. [The Government also referred to state statutes requiring compulsory militia service in force before and after the adoption of the Constitution; Rev. Stats., § 1998, amended in 1912, 37 Stat. 356; and the following acts of Congress providing for drafting the militia: Feb. 28, 1795, 1 Stat. 424, amended April 18, 1814, 3 Stat. 134; July 17, 1862, 12 Stat. 597.]