Federal Public Defenders Launch Hub for Supreme Court Cases (1)

Federal public defenders are launching a centralized effort to coordinate Supreme Court litigation in order to sharpen the defense bar’s performance before the justices.

The Judicial Conference of the United States, which sets policy for federal defender offices nationwide, voted Tuesday to authorize the Supreme Court Advocacy Project as its own stand-alone entity within the defender program. The conference approved four full-time positions to support SCAP, according to a spokesperson for the Administrative Office of the U.S. Courts.

The project aims to bolster high court practice and build a pipeline of appellate talent within federal defender offices, as well as address longstanding questions about consistency in the representation of criminal defendants there, according to Geremy Kamens, federal public defender for the Eastern District of Virginia.

“It’s been very clear certain members of the court have been very critical about the representation indigent defendants have received,” said Kamens, who has been helping to stand up SCAP.

The defender service has tapped Ashley Robertson, currently an assistant to the US solicitor general, as the project’s director.

Robertson clerked for Justice Elena Kagan and two lower court judges and served as senior counsel to former Deputy Attorney General Lisa Monaco, before joining the Office of the Solicitor General, where she argued three cases before the justices.

“We were all impressed with her vision of what SCAP could become, both for providing support and developing in-house talent for arguing before the court,” Kamens said. His office will provide initial administrative support as SCAP launches.

Joining Robertson as SCAP’s senior counsel will be Stacie Fahsel, who currently serves in the appellate unit at the Federal Public Defender’s Office for the Western District of Pennsylvania. Fahsel clerked for Judge Harris L. Hartz on the Tenth Circuit before stints at Williams & Connolly and Paul Weiss.

Robertson and Fahsel declined to comment, citing restrictions related to their current roles.

Breaking Silos

Unlike the Justice Department, which has the Office of the Solicitor General to coordinate Supreme Court litigation, each federal defender office has historically handled its cases itself.

“Every time an office gets a Supreme Court case, we’re reinventing the wheel,” Kamens said.

Federal defender offices see five-to-six cases a year make it to the Supreme Court, Kamens said, making them, collectively, one of the court’s most frequent advocates. But those cases are spread across 83 separate defenders’ offices around the country, leaving the experience gained dispersed.

That’s led to criticism from the bench that attorneys representing indigent defendants, while often experts in the criminal law relevant in their cases, are failing to preserve critical appellate issues before lower courts or to consider key questions justices will pose about how their ruling could affect the broader legal landscape.

At a 2014 event commemorating the court’s landmark decision in Gideon v. Wainwright—which incorporated the Sixth Amendment’s right to counsel to the states—Kagan lamented what she saw as a “systemic failure” in criminal defense advocacy before the court.

“The place where, I have to say, case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” Kagan said.

Justice Sonia Sotomayor has similarly suggested it may often be “malpractice” for defense attorneys with little-to-no appellate experience to continue handling cases after the court grants review rather than turning them over to seasoned Supreme Court advocates.

Federal defender offices frequently rely on outside counsel to assist with briefing and oral argument. This term, former US Solicitor General Seth P. Waxman of WilmerHale argued a case on behalf of death row inmate Joseph Smith after the Federal Defender for the Middle District of Alabama won at the Eleventh Circuit. And Lisa Blatt of Williams & Connolly last week argued Hunter v. United States instead of the Criminal Justice Act-appointed attorney who’d represented the defendant before the Fifth Circuit.

Specialized third-party resources have also developed for attorneys arguing before the court for the first time, including Georgetown’s Supreme Court Institute and the Carter G. Phillips/Sidley Austin Supreme Court Clinic at Northwestern Pritzker School of Law.

Sidley Austin partner Tobias Loss-Eaton, who co-directs the Northwestern clinic, said the federal defenders he’s worked with have been very knowledgeable. But, he said, they often don’t have the manpower modern Supreme Court prep benefits from, particularly when it comes to setting up moots with experienced members of the Supreme Court bar.

“That’s a hugely valuable thing for anybody who’s going to argue before the court,” Loss-Eaton said.

Kamens said the goal of SCAP is to better coordinate internal defender expertise with outside resources, like the Northwestern clinic, while allowing defendants and attorneys who don’t want to hand over their cases the option of remaining in-house. SCAP will not be a “defender general” with authority to take over cases from defender offices.

“It’s very important to understand the bottom-up structure and respect the relationship lawyers have with their clients,” Kamens said.

Robertson and Fahsel are expected to begin their positions this summer.