In yet another case of “why is the judiciary doing that?” recent reporting suggests that the Judicial Conference of the United States just approved a step toward the creation of a sort of “defender general” to coordinate criminal defense strategy at the Supreme Court.
According to one news report, the goal is “creating a counterweight to the U.S. Solicitor General’s Office.” The report continues, “The long-term plan is for the office to become an independent, standalone entity.” The federal defender for the Eastern District of Virginia, where it will be housed, told a reporter that the office will take a “comprehensive global view” of criminal defense.
As described, there are a number of problems with this. To begin with, insofar as this office is taking any kind of “comprehensive” view of the law in an effort to move it strategically, it seems like this would be acting in violation of the Appointments Clause. A federal official who takes strategic action to affect legal policy would seem to be a principal officer of the United States. Whoever runs this office, on the other hand, seems to be — at best — appointed by someone appointed by federal judges. There’s no way that’s kosher.
Alarm bells having been rung, I went to the report language for the judiciary’s latest appropriation. After all, defender services did get a funding increase (Democrats are always asking for one). Maybe with the increase came language establishing this office? Turns out it did not.
So what happened? Did the courts just invent a new federal office using generally appropriated funds and existing authorizations? Sort of, yes.
Since that initial reporting, the judiciary has tried to clarify what it did and didn’t do. The job listing for the position is out of the Eastern District of Virginia. It doesn’t describe it in as lofty of terms as the initial reporting. But it does say, “In addition, the Project will identify and monitor cert-worthy issues in the lower courts.” In other words, it will try to use the Supreme Court to change applicable law strategically. I doubt Congress ever agreed to pay for that.
The judiciary itself has apparently clarified further to Congress that this is merely a “project” like nearly a dozen others contained within the defender services. Far from a “defender general,” these positions will simply provide educational and technical support to defenders and CJA attorneys with practice in front of the Supreme Court.
That’s better, but it ignores the talk of strategy in the EDVA job description. Will this person be scouring the lower courts for cert-worthy issues to make things easier for criminals? Is that just education and technical advice?
While the judiciary believes it has adequate authorization for this program, the relevant statutory text is less clear. The authorization is for funds that shall be available “for the continuing education and training of persons providing representational services under this section.” Does that sound like “Assisting appointed counsel in drafting and editing certiorari petitions and briefs in opposition” or “Coordinating amicus support” or “Monitoring the Supreme Court docket” or “Providing strategic and practical advice to litigation teams”? Not really. To say nothing of whether it encompasses finding cert-worthy cases like truffles.
The point of the Criminal Justice Act is “furnishing representation for any person” who can’t pay. That is, it exists to support individual lawyers to represent individual defendants, while also providing for some of the educational and technical support they may need. I doubt Congress intended to hide a Kagan clerk in that mouse hole.
The judiciary nevertheless believes it has the authority to do so under current law and apparently has funding to operate this program through current appropriations. Most problematically, though, is their stated hope to ask Congress for designated funding in the next available funding cycle — so FY28.
This is a textbook big-government trick to grow the bureaucracy. You establish a new and novel program under existing appropriations, you get it up and running, and then suddenly it’s a necessary program that needs its own funding stream.
Republican appropriators should proceed with caution. More money to defender services is always part of the sausage-making of the appropriations process. But a new program designed to advance soft-on-crime policies as a strategic matter? That’s new. They should take a hard look at it in future appropriations.