Some Thoughts on the Nomination of Pamela Harris to the Fourth Circuit

By Michael Wein

As recently posted on this blog, President Obama has nominated Georgetown Professor Pamela Harris for the Fourth Circuit seat that Judge Andre Davis recently vacated. In addition to her teaching credentials, Ms. Harris appears well suited for this task, as a regular Supreme Court practitioner who once clerked for Justice Stevens.

As I discussed in a previous post, there were five candidates, mostly with significant appellate experience, whom Senators Mikulski and Cardin recommended to President Obama. The list included former Acting Solicitor General Neal Katyal. (Before posting, this information was confirmed from multiple sources.) So as predicted, President Obama did pick a candidate who had significant appellate or Supreme Court experience, just not Mr. Katyal, and Ms. Harris like Mr. Katyal teaches at Georgetown Law.

One wonders if Mr. Katyal’s well-known representation of GITMO detainees was a worry for President Obama of potentially becoming politicized this election year. Katyal recently appeared on Rachel Maddow’s show about two weeks ago, discussing attorneys generally being targeted unfairly for their previous representation of controversial criminal clients.

The tradition of great lawyers representing ‘unpopular’ causes traces back to our Founders. In 1770, John Adams, after much deliberation agreed to represent the British soldiers involved at the Boston Massacre. Needless to say, they got good representation, about 21 years before the Sixth Amendment was ratified. There are fortunately transcripts to work off of on that well known case, including what was the first coherent use of a “Reasonable Doubt Jury Instruction,” something I intend to discuss in a future post.

One other interesting note about Pamela Harris’ appointment, is that it appears to be in stark contrast to President George W. Bush’s attempted appointment in 2001 of Peter Keisler to the Fourth Circuit, whom Senator Mikulski and then-Senator Sarbanes opposed for insufficient Maryland contacts, including not being a member of the Maryland State Bar Association. A review of the MSBA member directory indicates that Mr. Katyal is a member, but Ms. Harris is not. However, Ms. Harris did grow up in Maryland, attending Walt Whitman High School in Bethesda, so perhaps that makes up for the apparent difference.