Caleb Stegall: In defense of the unpopular

When I was nominated to the Kansas Court of Appeals in 2013, many chose to criticize my qualifications to serve by attacking my representation of people they didn’t much like. Some state senators openly argued I should not be confirmed because I had previously represented former Kansas Attorney General Phill Kline. Several voted against me for that reason. Later, when I was nominated to the Kansas Supreme Court by the non-partisan Kansas Supreme Court Nominating Commission, the same accusation was leveled by politicians and even some in the press.

And so I was disappointed this past week when again some chose to attack a judicial nominee because he has represented unpopular people; namely, criminal defendants. Not only is this unfair to the nominee — Carl Folsom III in this instance — it belies either a real ignorance of our system of justice or a cynical exploitation of that ignorance.

At a time when different segments of society seem less and less inclined to give a fair hearing to voices, ideas and people they disagree with, it strikes me as imperative that we reacquaint ourselves with the majestic principles that serve as pillars of justice delivered under the rule of law. Those principles include the idea that in a court of law, every person must be fully heard; that in criminal cases, their cause must be represented by competent and trained counsel; that everyone is equal before the bar of justice and no one, no matter how despised they may be by society, is prejudged or presumed guilty.

Back in 2013 when my nomination to the Court of Appeals was pending, former Dean of the Kansas University School of Law Michael Hoeflich wrote an op-ed defending me against criticisms based on the clients I had represented. He wrote: “One of the fundamental underpinnings of the American justice system is that every litigant is entitled to legal representation. Lawyers often take on unpopular clients. It is simply wrong to suggest that a lawyer is unfit to be a judge because one does not like his clients.” Those words are as true today with respect to Mr. Folsom as they were when they were written about me.

Just as clearly, senators may certainly cast their votes in the manner and for the reasons they choose. And inquiries into a judge’s or nominee’s judicial philosophy and temperament by the public or its representatives is fair game. That is why I and all my colleagues on the bench take such care to give carefully reasoned explanations of our judicial decisions. This practice serves, in part, as a necessary “check” by making judicial rulings deliberative and transparent to the public.

It is also true that politicians have criticized judges regularly throughout our history. Theodore Roosevelt once said former Kansas Supreme Court Justice and then United States Supreme Court Justice David Brewer had “a sweetbread for a brain.” Judges and judicial candidates recognize this comes with the job.

In the face of hard disagreements — and unfair name-calling — the civic temperament demanded by the rule of law calls us to strive for the ideal of a public-spirited, deliberative and reasoned engagement with others. For a lawyer, this may mean speaking vigorously and boldly on behalf of a client or cause that society has turned against.

Carl Folsom gave us all an inspiring example of this when he responded to the vote of the Kansas Senate with grace and class, saying that “Kansans … are resilient. Time to go help some more people.” We should all be able to put ourselves in the shoes of another and say: “If I were accused of a crime, I would want someone like Mr. Folsom in my corner.”

As a judge, I do not and will not publicly endorse or oppose any candidate for office — including Mr. Folsom. But I can say that at a time when many are wondering if our political structures are hopelessly broken, the American constitutional tradition of sheltering, protecting and cherishing an open public space for the full airing of all viewpoints and facts — even on behalf of unpopular people and ideas, and doing so with deliberation and reason — deserves the respect and support of all of us, together.

Caleb Stegall is a Justice on the Kansas Supreme Court.