Elena Kagan is a notably opaque Supreme Court nominee. In order to perform their constitutional function, the members of the Senate will have to reach a conclusion about her views and whether they are in the mainstream. Certain of the documents that she has generated give clues that lead to disturbing answers.

One such document is her 1987 memorandum to Supreme Court Justice Thurgood Marshall regarding the petition for certiorari in Pughsley v. O’Leary, written while she was one of his clerks.  In that memo, Kagan demonstrates how far out of the mainstream some of her views can be, writing, “In his petition for cert, petr [i.e., petitioner] attacks the standard set forth in Strickland v. Washington to govern ineffective assistance claims.  I’d like to reverse Strickland too, but something tells me this court won’t buy the idea.” (Emphasis added.)

In its 1984 decision in Strickland, the Supreme Court established the standard for determining whether the attorney for a criminal defendant competently defended his client.  The Sixth Amendment to the Constitution provides, in part, “In all criminal prosecutions, the accused shall enjoy the right to have . . . the Assistance of Counsel for his defense.”  In 1970, the Supreme Court explained that “the right to counsel is the right to the effective assistance of counsel.”  The corollary to that proposition is that a criminal defendant whose attorney does not provide effective assistance may be entitled to have the conviction set aside.

Why might Kagan “like to reverse Strickland?”  She doesn’t explain.  Does she, like her mentor Justice Marshall, think that the Sixth Amendment is violated “when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney?”  If so, prosecutors might well expect her to vote to make them retry “manifestly guilty defendant[s]” for a variety of reasons, including what she sees as Sixth Amendment violations.

That prospect is troubling.  But, her unexplained distaste for Strickland is hard to explain because the decision is sound, and the test it establishes has worked well over time.

The Strickland case arose after David Leroy Washington pled guilty to three counts of first-degree murder and multiple counts of robbery, kidnapping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery.  His plea, which included a plea of guilty to three capital murder charges, was contrary to his attorney’s advice, as were his decisions to confess to two murders and to be sentenced by the trial judge without the benefit of an advisory jury’s recommendation.  Washington’s confessions to “gruesome crimes” boxed in his attorney, an “experienced criminal lawyer.”

The trial judge sentenced Washington to death, finding that there were a number of factors that aggravated the seriousness of the crimes and none that mitigated it.  In trying to convince the court not to sentence his client to death, Washington’s lawyer relied on his client’s acceptance of responsibility and successfully limited evidence of Washington’s criminal record.  He did not request a psychiatric examination because Washington gave him no reason to think one was needed and did not try to find character witnesses.  In post-conviction proceedings, Washington complained that his lawyer provided ineffective assistance, and the Supreme Court took advantage of the case to establish the standards for deciding “when the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel.”

In a 7-2 decision by Justice O’Connor, the Court held that it was up to the defendant to point to defects in his attorney’s performance.  The reviewing court would then consider whether, in light of all the circumstances, those defects fell outside the range of what a professionally competent layer might have done in the same circumstances.  In order to establish a claim of ineffective assistance, any defects in the lawyer’s performance would have to be prejudicial to the defense.

The Court declined to provide a detailed set of rules for lawyers to follow, reasoning that lawyers are entitled to “wide latitude . . . in making tactical decisions.”  Courts are not to “second-guess” the lawyer, but rather to put themselves in counsel’s shoes, “strongly” presuming that the lawyer “rendered effective assistance and made all significant decision in the exercise of reasonable professional judgment.”

Justice O’Connor explained that the goal is a “fair trial.”  Under the Court’s standard, a criminal conviction will not be overturned unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Measured against these standards, Washington’s lawyer performed competently.  The Court found that his strategy was “well within the range of reasonable professional judgments.”  Any character or psychological evidence would have been “little help” given the “overwhelming aggravating factors.”

The Court’s 7-2 majority was really 8-1 with respect to the standard for evaluating the performance of criminal defense lawyers.  Justice Brennan dissented from the Court’s refusal to set the death penalty aside, but thought that the standards that it established would be “helpful guidance.”  He explained that the standards were both “sufficiently precise” to be applied and “sufficiently flexible” to account for different cases.  Significantly, Justice Brennan rejected Justice Marshall’s suggestion that, by adopting the standards it did, the Court would “stunt” the development of the law.

Only Justice Marshall disagreed with the Court’s standards.  He criticized the test as too general to be helpful and capable of being made more specific.  He thought Washington’s lawyer could have done a better job of humanizing his client, but Justice Marshall would have objected to the death penalty in any event.

Justice Marshall’s dissent brings us back to Kagan’s unexplained desire to reverse the decision.  If she thinks that Strickland has “stunt[ed] the development of constitutional doctrine,” she should explain how that doctrine should have developed.  The expectation of developments in constitutional doctrine smacks of judicial activism.  In addition, if she thinks that “manifestly guilty defendant[s]” should get new trials if their attorneys don’t perform effectively, she should explain her understanding of the harmless error rules.  Such retrials punish the community, and she should tell us why we should assume that risk.  Finally, she should explain how reversing an 8-1 decision is a mainstream view.