Presidential Commission on the Supreme Court of the United States
criteria, or issuing general invitations for amicus briefing on issues and selecting one responding amicus to argue.
The Committee does not endorse prescribing a public standard for appointments, but we support continued expansion of the group to which the Court looks for appointments. In particular, greater diversity likely would result if consideration were given to more attorneys who are not former law clerks, especially advocates in the specialized appellate bars of state courts and other federal courts and law professors.
Criminal Defense Cases
Some of the best advocates before the Supreme Court are criminal defense attorneys, especially in the specialized capital defense bar. But the attorneys in the criminal defense bar generally have fewer resources to support specialized Supreme Court litigation than do their prosecutor counterparts. Government prosecutors also have more strategic flexibility about which issues to litigate in a case, whereas criminal defense attorneys have an ethical duty to zealously represent the interests of their individual client whose personal liberty is at stake. And prosecutors collaborate extensively with each other through organizations like the National Association of Attorneys General, and often support each other as amicus curiae, but such resources are much more limited on the criminal defense side.
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The imbalance would be better addressed through federal and state legislative appropriation of increased resources to develop more Supreme Court specialization within the criminal defense bar in state and federal public defender offices and through greater collaboration with Supreme Court specialists in clinics and pro bono partnerships.
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