CA2: Judge Jacobs --- Fu*k the poor. They don’t deserve lawyers because they might win

ACSblog reports that Second Circuit Judge Dennis Jacobs decided to go to a Federalist Society event and bash pro bono work.  Unfortunately, because Judge Jacobs was trying to score political points he was incapable of arguing nuance.  Therefore, I need to point some things out.   Apparently nuance only matters in District Courts.

The one thing that Judge Jacobs does do is concede that Marx is right.  Being of the class to afford a lawyer will alter rules of decision regardless of the merits of the issue.  Sources at the Federalist Society event noted that none of the members there questioned him on his complete adoption of every Marixst legal theory known to man!

I got eight reasons below why Judge Jacobs was acting silly.

First of all, the Federalist Society isn’t what it used to be.  No longer do law students have to pretend to care about its agenda to get jobs.  Now, Federalist Society is means with “kook.”  This is a shame, as their law students division put on a lot of events that were interesting, but their lawyers were generally trying to suck up to everyone and couldn’t do any actual lawyering unless they were representing the government.    Usually a Federalist Society event consisted of 1) Professors that don't represent people; 2) egotistical judges that wanted to hang out with their clerks; and 3) whiny lawyers that complain about activism as  way to detract from their deficient legal performance. 

Whatever the case, many people got jobs by simply having two resumes.  Once which said “ACS” and the other which said “Federalist Society.”  The likes of Monica Goodling are rather easily fooled by savvy law students that write bland law review articles. Hell, I am a member.  All you need to join is cash.

Secondly, Judge Jacobs alluded to mandatory pro bono requirements for lawyers.  On this I am with him.  Making anyone do anything is a recipe for failure. Indeed, most young associates at first year law firms probably will have no desire to help poor people.  They hate poor people.  So, they should, as a policy matter, be kept as far away from the poor as possible. 

Third, Judge Jacobs doesn’t really understand the determinist argument.  Merely having a lawyer (or 100 lawyers) isn’t supposed to change the legal result.  Sure, I hate pro ses as much as the next guy, but Judge Jacobs actually seems to be arguing that one’s contractual relationship with their lawyer is a rule of decision.  There is no other way to read his comments.  So, sure, the “bird lady” might have be able to keep her birds (though I don’t think Jacobs knows or cares about the full story), but this would be because the law was on her side.

Fourth, Judge Jacobs doesn’t actually understand the policy-based arguments against pro bono work.  This is because Judge Jacobs is trying to make some political point.  However, there are fields where there is no reason for lawyer to work for free.  In many areas, legal fees are paid by the government or the losing party.  There are good reasons for law firms to simply not represent people.  But, to make this argument he would have to understand specific statutes, which he really isn't capable of.  He likes broad strokes because they are easy.

Fifth, Judge Jacobs makes a good point about people honoring each other.  But really, prosecutors have much larger mutual admiration societies than anyone else.  Judge Jacobs leaves this out because he is trying to make political points.

Sixth, Judge Jacobs says that government lawyers are accountable.  To whom?  Few government lawyers are elected.  At best, government lawyers are evaluated on the “quality” of their advocacy.  Not on the result they achieved, and certainly not on whether the agency or entity they represent should never have been represented in the first place. Judge Jacobs doesn’t care for this little point.

Seventh, if Judge Jacobs was really taking the issue seriously (and not trying to be admired for political reasons by the Federalist Society) then he would explain precisely what the difference is between someone that is represented and someone that is not.  Judge Jacobs seems to be arguing that there is good to come from people not having lawyers

Eighth, he says "No public good is good for everybody,"  Of course this is true.  But we have a robust legal system (complete with legislatures and courts) to decide what is best for everyone.  If people don’t like the way things are going, they are free to change the laws or constitution.  Yet, this doesn’t happen.  The last time people tried to change the constitution (regarding gay marriage and flag burning) the people were not interested.  There have been no successful moves to change the constitution to prevent the courts from interpreting the constitution, and to change the oath of office for federal judges to NOT include a reference to the constitution, and to require them to defer to the president on all constitutional issues.   What he doesn’t want to admit is that most people think that vigorous debate and advocacy is good for the country.  But this isn’t good enough for him.  He wants people that can’t afford lawyers to be handicapped.  Yet, something tells me that he wouldn’t like it if his property was taken and he was told that he would have to pay more money than he ever earned in his life for even a chance of having a lawyer, yet alone getting his property back.

Somehow the judge didn't mention the unpaid externships that government (and judges) subject law students to.  Is this a form of pro bono?  Is he against this crap, too?  I know I am.  Because of his obvious bias I know he will disqualify himself from any case where the government receives any help from some idiot law student that is stupid enough to work for free alongside paid attorneys for the government.  And, can these externs be held accountable ?

Finally, he ended with the throw-away line:

Courts love having large and important issues presented to them. ... We should show some self-restraint.

Essentially he is arguing that no matter what the issue is, and no matter what the constitutional or statutory injury, that courts should ignore the injuries of people that he doesn’t like.  But, on the other hand, he seems to have no problem with courts paying addition to whatever indictment the government chooses to bring. Wouldn’t judicial restraint counsel in favor of dismissing many indictments as not being the correct use of the judicial system.