Death Row Inmates' Go-To Supreme Court Advocate
For at least two decades, former U.S. solicitor general
Seth Waxman of
Wilmer Cutler Pickering Hale and Dorr has been the "go to" advocate in pro bono death penalty cases before the U.S. Supreme Court. He will be at the lectern again in the last argument of the January session—
McCoy v. Louisiana—to argue that Robert McCoy's defense counsel in his capital trial violated the Sixth Amendment when he told the jury that McCoy was guilty over McCoy's express objections.
Waxman spoke with me (Marcia, here) last spring about what drives his commitment to the work as an aside to an interview
about Wilmer's pro bono work.
He has maintained his commitment to death penalty work, he said, even though
“in my heart of hearts, I don’t think it’s wrong for civilized society to take the life of someone who is an incorrigible murderer.”
In the arena of life or death, Waxman’s advocacy has been far reaching. His successes in the high court range from persuading the justices that executing minors violate the Eighth Amendment in 2005 to convincing them in 2015 that Florida's death sentencing scheme was unconstitutional.
The roots of his commitment go back to his Yale Law School days when he was a research assistant to
Charles Black. The law professor, he recalled, delivered a compelling keynote lecture at the University of Texas at Austin law school in the aftermath of the Supreme Court’s decisions reinstating the death penalty.
“The whole process of reading the lecture and cases got me extremely interested,” said Waxman who then decided that when he practiced, he would devote 25 percent of his time to pro bono work.
After joining Miller Cassidy, Waxman called Anthony Amsterdam who, working with the NAACP Legal Defense and Educational Fund, had argued and won
Furman v. Georgia, invalidating the death penalty in 1972. He told Amsterdam that he wanted to handle a death case.
“Tony said: ‘Where are you going to be in the next 10 minutes?’ Three minutes later I got a call from Jack Boger [of the NAACP Legal Defense Fund) and he said, ‘You wanted to take some death penalty cases. How many would you like?’”
From his first case, Waxman said, “I was totally on board.”
The first death case he argued in the Supreme Court was for a double murderer who got habeas relief from the Sixth Circuit, he said. “I was actually appointed by the Supreme Court to represent him and my adversary was (now Chief Justice) John Roberts. It was the first time we met.”
Waxman soon started a brown bag lunch group of D.C. lawyers who handled death cases. The group evolved into the ABA’s pro bono habeas representation group. He lobbied other firms’ managing partners to encourage participation.
“I’ve had a steady diet of death penalty representation cases in the Supreme Court and a much larger diet of cases in which I have either been on the briefs or helped other people argue,” he said. “I probably will be in the game as long as I practice law. I’m motivated by fairness. It really is all about minimal procedural fairness.”
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