CONTENTS INTRODUCTION I. GIDEON IN WHITE: RACE-NEUTRAL LAWYERING II. GIDEON IN COLOR: RACE-CODED LAWYERING III. GIDEON IN BLACK: RACE-CONSCIOUS LAWYERING A. Poverty Lawyers B. Criminal Defenders IV. GIDEON IN COMMUNITY: COLLABORATIVE LAWYERING CONCLUSION Ye shall have one manner of law, as well for the stranger, as for one of your own country: for I am the Lord your God. (1) INTRODUCTION
Nearly twenty years ago, when I started teaching as a young clinical instructor in New York City, I learned that John Hart Ely would be visiting the law school as a distinguished professor during the spring term. Awestruck, I considered various gambits to engage Ely in debate--perhaps a radical critique of Democracy and Distrust (2) or a political indictment of The Wages of Crying Wolf" A Comment on Roe v. Wade. (3) In time, I chanced neither. Uncharacteristically timid, I steered clear of him, fearing he would dismiss my interests in poverty law and clinical education as inconsequential, even trivial.
Years later in Miami, whenever I recounted this story, Ely jocularly upbraided me for dodging him. Naturally reticent, he seemed baffled when junior faculty retreated from him out of academic trepidation. On more than one occasion, he expressed disappointment that a young colleague here or elsewhere had passed up an opportunity to join him in a class or to share a hopeful draft of a manuscript. For Ely, junior faculty infused energy and vitality into the common academic enterprise of teaching law. Charmingly cantankerous, he mentored scores of young faculty, soliciting their participation in his work and supporting their own fledgling scholarship.
Soon after he joined the Miami faculty, on a late summer evening in August, Ely rang me up on the telephone. In the first years of our friendship, hearing from him always gave me a start. A former soldier in the Military Police Corps, he had a way of rousting attention. Struck by the lateness of the hour, I wondered aloud about the purpose of the call. Having spent two months teaching summer school in Miami, I had traveled far north for respite in New England. Ely had worked to track me down. He wanted to talk about race. He worried that he had been misunderstood.
Earlier in the year, Ely and I had started trading ideas about race. Struggling to integrate Critical Race Theory into my civil procedure, professional responsibility, and clinical courses, (4) I had sought out his opinions on the standard accounts of race found in constitutional litigation and procedure. More than once, I lamented the absence and distortion of race in civil procedure and professional responsibility cases, textbooks, and law review commentaries. Even clinical texts on the lawyering process, I complained, tolerate stereotype and stigma in representation, to the detriment of impoverished clients and their communities.
Ely confronted race squarely, I quickly realized, recognizing representational and remedial complexities while maintaining deep commitments to equality in law and society. Proud of his work in Gideon v. Wainwright (5) and his early service as a public defender, he encouraged me to tackle race on both the civil and criminal sides of the lawyering process. Moreover, he urged me to visit the egalitarian themes of his work on judicial review in Democracy and Distrust. Those themes, he often pointed out, informed his policy decisions as general counsel of the Department of Transportation (6) and his actions as dean of Stanford Law School. (7)
Paradoxically, Ely's commitment to equality and his profound egalitarian sensibility began to divide us during the summer, which surprised me given our mutually held convictions and shared reformist ambitions. To Ely, lawyering for the poor and the disenfranchised was tightly fastened to race and equality. Indeed, the good lawyer was race conscious (aware of racial motivation and committed to racially tailored relief) and egalitarian minded (dedicated to fair access, assistance, and opportunity in law and the legal system). For Ely, however, neither race consciousness nor racial equality fully embraced race-based identity and community.
To be sure, Ely understood racial identity and community. His analysis of racial motivation in legislation turned on the character of white and black identity. Likewise, the nature of racial community underlay his examination of racial equality in voting. But I believe the import of racial identity and community goes beyond substantive legislation and equality. In lawyering, identity and community constitute dignity-based process values that derive from fundamental notions of personhood and self-determination. These values also serve an instrumental purpose of preserving or enlarging cultural, social, and political standing. Claims of equal access, assistance, and opportunity that violate this integrity or undermine this purpose run afoul of the central racial norms of the lawyering process.
Out of kindness, Ely never openly challenged this lawyering thesis, though on many occasions he seemed to struggle with its overly broad implications. Equality might not be sufficient, I might hear him say, but it is a damn good start. Besides, he might add, the lawyer's job is to protect the rights and liberties of the underdog. Let lawyers be lawyers! But Ely knew that race is different and it is everywhere. It infects law, culture, and society. It taints politics. It even contaminates the classroom. And so, many summers ago, we unexpectedly debated racial identity and community not only in law and lawyering but also in legal education, reflecting painfully on Ely's experience at Stanford Law School. We guardedly quarreled over the meaning and utility of race as an organizing principle for sociolegal analysis and political action. Fueled by a peculiar mix of historical regret, generational disagreement, and ideological divergence, that debate endured even as our friendship strengthened, often to be revisited but never resolved. Unsure that I appreciated the theoretical stakes and the practical difficulties of fulfilling a commitment to racial equality, and worried that I might judge him too harshly for hard choices he had made long ago as a public defender, agency counsel, and dean, Ely declared plaintively that night on the phone, "Now, I thought we were pretty good friends!"
This essay is about becoming friends with Ely's writing on race and lawyering. Its purpose is to situate Ely within the advocacy traditions of liberal legalism. Like Ely, liberal lawyering suffers from the tensions wrought by a dual commitment to law and moral politics. Law heralds process values, and its practice entails formal commitments to principles of neutrality, objectivity, and reason. Moral politics, in contrast, honors intrinsic norms and extrinsic results, and its performance involves instrumental commitments to principles of partisanship, subjectivity, and passion.
For four decades, Ely attempted to resolve the moral/formal tensions of liberal legalism in constitutional theory and practice. Like other liberal lawyers, he strove to balance formal commitments to legal process values with moral and, indeed, political commitments to democratic access and racial equality norms. Through the adversarial process, lawyers in the fields of criminal justice and poverty law press for open access and equal treatment on behalf of the poor and the accused. But by staying within the constraints of that process in order to deliver access and equality to their impoverished clients, these lawyers fail to appreciate the widespread institutional subordination of the poor in law, culture, and society.
Neither Ely nor liberal lawyers grasp the importance of antisubordination principles of representation, which prohibit demeaning clients and damaging communities. Under antisubordination logic, nothing is neutral in law, and nothing is natural or necessary in lawyering. By focusing on identity, antisubordination principles affirm both subjectivity and community in client representation. Their focal point is the social and cultural identity of the client in the context of community.
From an antisubordination standpoint, the client is defined by his or her identity, best understood as an amalgam of parts fused and fragmented by class, gender, race, and more. This identity connects the client to the fabric of community through the intertwining strands of family, school, and neighborhood. Any cultural or social stigma that damages identity harms the dignity of the client and tarnishes the integrity or collective standing of her community. Remedying that harm requires a mix of law and politics in community action. Yet as this essay endeavors to show, community-based legal action is a remedy too often out of the reach of liberal lawyers.
The essay is divided into four Parts. Part I describes the history of Gideon v. Wainwright, documenting Clarence Earl Gideon's personal background and the procedural contours of the litigation. It chronicles Ely's participation and its continuing hold on his legal imagination.
Part II uses Gideon to uncover the jurisprudential roots of Ely's vision of lawyering. It shows how Ely developed a legal process conception of political access rights and minority equality rights through his writings on civil rights, constitutional law, and criminal procedure. Moreover, it explores how Ely's process vision was enlarged by the civil rights movement and, at the same time, tempered by separation-of-powers considerations of role competence, institutional function, and political legitimacy.
Part III reexamines Gideon to expose the shortcomings of legal process and client-centered lawyering models erected in defense of the unrepresented. It demonstrates that these liberal-lawyering models of representation in the fields of poverty law and criminal justice focus on adversarial rights and material outcomes at the expense of democratic empowerment and...