The Boston Massacre. Five American men killed by British soldiers in 1770. The British soldiers were charged with murder and tried. They needed a lawyer to represent them and were having trouble finding one who would take their case because all of the local lawyers knew it would harm their reputations. But, one did take their case. John Adams. He became the second President of the United States.
John Ferguson. Convicted in Florida of murdering eight people in 1977 and 1978, which included a 17-year-old girl he had also raped. He was given the death penalty. You can imagine there was significant support in the community for that conviction and that punishment considering the heinous crimes Ferguson committed. His lawyers, however, claimed he had a mental illness and that he should not have been convicted. To many attorneys, not a popular case to take or client to defend. But, one of his attorneys was John Roberts, now the Chief Justice of the Supreme Court of the United States.
Why share these stories about lawyers taking what to some are unpopular cases? Because comments were publicly made this week comparing United States District Court nominee Tom Farr’s representation of Sen. Jesse Helms’ campaign and the North Carolina Legislature on voting cases as “tantamount to Adolf Hitler wreaking havoc among” the Jews, and so he is not qualified to be a judge. Comments such as this are uninformed, divisive and do not have any place in the rational discussion about whether someone is qualified or not to serve as a judge. Whether a nominee is qualified for judicial post should be debated on his or her education, experience, ethical history and overall competence. Not on whether the nominee represented a client who did something someone disagrees with or finds offensive.
One of the primary services a lawyer provides is to be an advocate for his client. The British soldiers charged in the Boston Massacre were entitled to have a lawyer as an advocate. John Ferguson, a man responsible for eight murders, was entitled to have a lawyer as an advocate. Similarly, the North Carolina legislature is entitled to have a lawyer act as advocate when legislation it passes is challenged in court.
And, while those British soldiers and Mr. Ferguson may have committed unlawful and troubling acts, the lawyers who represented them did not commit those acts, but merely acted as their advocates in court. While Tom Farr’s representation of Helms’ campaign or the legislature in voting cases may concern issues distasteful and offensive to some, such legal work does not equate to Hitler’s murder of the Jews nor should it alone disqualify Farr from being considered for the position of United States District Court judge.
The American Board of Trial Advocates (ABOTA) is a national nonpartisan organization consisting of equal balance of plaintiff and defense lawyers who regularly interact with our federal and state judiciary. We object to comments seeking to politicize the consideration of judicial nominees. We believe nominees should be evaluated in a manner that assures we have well-trained, qualified, experienced, neutral and independent judges. Political attacks that distort a nominee’s record have no legitimate role in the consideration of individuals nominated for judicial positions. Injecting politics into the judicial nomination process erodes public confidence in our judiciary.
We have objected to attack ads against N.C. Supreme Court Justice Robin Hudson based on her dissent in a sexual predator case. We objected to President Trump’s attacks on the judiciary over rulings in immigration cases. We objected to the state legislature’s recent actions, which we felt infringed on the independence of our judiciary. Now, we object to public attacks on lawyers for simply representing clients whose legislative acts are ones with which some of our citizens disagree.
ABOTA is dedicated to preserving a fair and impartial judiciary and the right to a trial by jury. However, comments comparing a judicial nominee to Hitler threaten to harm the fairness of court proceedings, should this nominee be affirmed. The evaluation of a judicial nominees should rise or fall on their qualifications and their ability to adhere to legal precedent and not to special interests or political pressure.
Nick Ellis is the immediate past president of the Eastern N.C. Chapter of the American Board of Trial Advocates. Carlos Mahoney is the current president.