Dennis Jacobs is the Chief Judge of the United States Court of Appeals for the Second Circuit. This is a high ranking judgeship, as these things go.
A couple of years ago he gave a speech at a Federalist Society gathering in Rochester, New York. Speech making is always a little dangerous for judges, because there’s a tendency to slip up and reveal honest thoughts. In their written opinions on actual cases, their real thoughts are hidden behind the pretense of objective legal “reasoning”, which isn’t reasoning at all, the courts having long since abandoned such trifles.
There was a “dust-up” over Judge Jacobs’ speech. It quickly faded and the judge retreated to his NYC fortress and hasn’t really been heard from since. At least not in a widely covered speech.
The title of his speech was “Pro Bono for Fun and Profit”. It was a swipe at another pretense, the pretense of lawyers working for Wall Street firms, or professors and their “clinics”, who believe in some cause or other and turn it into a legal dispute, often in such artificial ways that they have to go hunting for an actual Plaintiff, who they then represent for free – “pro bono”, as we say.
The controversy that followed was shallow. A local reporter filed a story in which she summarized the speech, characterizing it as a cynical criticism of pro bono work. She might have inferred that from the snarky title of the speech, without going further. This prompted a defense of Judge Jacobs from other quarters, describing the reporter’s characterization as unfair. Correctly, I think.
As most investigators and insightful cross-examiners know, however, the most revealing things a person says are often not explicit, but inadvertent.
So it is with Judge Jacobs’ speech:
“My point, in a nutshell, is that much of what we call legal work for the public interest is essentially self serving. Lawyers use public interest litigation to promote their own agendas, social and political- and (on a wider plane) to promote the power and the role of the legal profession itself.”
What Judge Jacobs is revealing here is that he views lawyers’ arguments with a great deal of skepticism. Their appeals to the law, to reason, their advocacy for their clients is not grounded in a sincere belief in what they say, but in a devotion to their own interests. He therefore sees litigation, even pro bono litigation, as a power struggle. Imagine how he sees the ordinary case where you have a real client with a real interest.
But in and of itself this is not the problem. A skeptic might be fair, if the skepticism applies even handedly and across the board; if, that is, and for example, the government’s arguments are seen as pretense just as much anybody else’s.
But there’s the rub. After calling the motives of much pro bono litigation into question, Judge Jacobs goes on:
“A lot of public interest litigation is brought against governments, and against the elected and appointed officials of government.”
The obligatory and brief disclaimer follows:
“I do not delude myself that governments function all the time (or even very often) for the public benefit; and there is no doubt that people who are elected and appointed to government posts are imperfect, make mistakes, and promote themselves, their parties, or the interest groups that support them.”
This is then immediately followed by Judge Jacobs’ true beliefs:
“But we should sometimes consider that in pro bono litigation, the government itself often has a fair claim to representing the public interest-and often a better claim. Everyone in government is accountable to the public (to the extent the public exacts accountability), either because they are directly elected by the people, or are appointed by elected officials, or hold their positions by virtue of civil service rules that have been created and administered over time by elected and appointed officials.”
And then to drive the point home, he goes on and on about it:
“It is therefore odd [i.e., wrong, in Judge Jacobs’ view]that judges, juries and even the public often form the impression that the legal coalitions that sue governments and government officials are the ones who are appearing on behalf of the public interest. Representation of the public interest is high moral ground, the best location in town; so everyone struggles to occupy that space. [I can’t wait to see who comes out on top in that “struggle”] The field is crowded: the activists and public interest lawyers, the professors and law school clinics, and the pro bono cadres in the law firms. [The suspense is killing me.] They’re in competition with government lawyers, and they often overwhelm government counsel with superior resources. [I think I’m beginning to sense where this is going. But the beleaguered, out-gunned government? What planet is he on?] But their standing to speak for the public is self-conferred, nothing more than a pretension. [It’s all over but the crying, now: the government wins.] As a group, they (of course) do both good and harm. [Back-handed compliment. Consolation prize to the loser.] But, unlike public officials, they never have to take responsibility for the outcomes–intended and unintended–of the policy choices they work to impose in the courts.” [Bottom line: Government is ‘responsible’; unaffiliated, independent lawyers are not.]
I have added my own commentary in the brackets, obviously.
So indeed Judge Jacobs’ speech was remarkably revealing, but no one picked up on just how. Lawyers should.
The speech was in fact probably the best public service Judge Jacobs has rendered in his “career” on the bench. He’s showing us how very high ranking judges really think: the facile and uninformed, yet deeply held opinions they have. And act upon.
Thank you, Judge Jacobs.