Election Law, Politics

3 Things Lawyers Can Learn From Yesterday’s Primaries

Off-year primary day was yesterday. For political junkies, last night was kind of like the Hall of Fame game that kicks off the NFL preseason and signifies that football is back. For non-junkies, last night was a pointless exhibition.

The big national story from last night was don’t f**k with the NRA. I think we all knew that already, but two Colorado Senators were recalled for passing tough gun legislation in a state with enough mass shootings to be a province in Syria. The always excellent Election Law Blog puts these results in context. Essentially, these votes will give purple state Democrats even more reason to react to the NRA like most people react to an armed mugger: “Please, take my legislative agenda, just don’t hurt me.”

So ends my coverage of mythical places west of the Hudson. Here in New York City, we had a pretty big slate of primaries yesterday. Every primary is a lesson for the politicians, but this election cycle was also a lesson for political prosecutors. Those who seek to rise to power based on their skills at seeking justice for aggrieved citizens can learn a lot from yesterday’s results.

See if you can finish the joke: A black guy, a police commissioner, and Eliot Spitzer walk into a bar…

LESSON 1: It’s Better To Be A Prosecutor Than A Reality TV Star

Brooklyn District Attorney Charles Hynes lost his Democratic primary to civil rights lawyer Ken Thompson. People outside of the five boroughs — hell, lots people inside the five boroughs too — aren’t going to appreciate what a stunning upset this is. A sitting Democratic Brooklyn DA hasn’t lost in a century. DAs don’t lose in this city. Every Law and Order episode you’ve seen where Adam Schiff or Fred Thompson is worried about the upcoming election is false. The only people with better job security than New York DAs are Article III judges and Nick Saban.

Obviously, the election says more about Hynes, his reality show, and his apparent belief that Orthodox Jews can’t be pedophiles, than the challenger. But I think the lesson here is that the victor, Ken Thompson, achieved this great upset by simply being a lawyer.

Well, a “high profile” lawyer. Thompson, an NYU Law grad, isn’t here because he’s been nobly grinding out personal injury cases for ten years. I feel like Thompson is kind of like the “real life” Johnnie Cochran, to the extent that the late Mr. Cochran was turned into a caricature of a lawyer by both his supporters and enemies. As an Assistant U.S. Attorney, Thompson prosecuted the cop who sodomized Abner Louima. In private practice, he re-opened the investigation into the murder of Emmett Till. And recently he represented Nafissatou Diallo, the maid who accused Dominique Strauss-Kahn of sexual assault.

While these cases are undoubtedly headline grabbing, they’re also cases. They’re not speeches or white papers or some kind of non-lawyer credential. Thompson has never run for anything before in his life, and in his first campaign, he took down a giant. If you want to be a lawyer who later runs for office, don’t underestimate the appeal of actually doing your job for a long time before you ask the public to give you a better job.

LESSON 2: Even The Best Prosecutor In The World Can’t Live His Life Like A Reality TV Star

Eliot Spitzer lost and in the end, it wasn’t even that close. I’ve argued before that Spitzer would have made a great, or at least a highly entertaining, NYC Comptroller. The Comptroller’s office is a regulatory position and one thing we know Spitzer can do is regulate. In New York City, where on-the-job competence is valued and “moral values” are somewhat lax, this seemed like the time, place, and position for Spitzer to make a comeback.

It didn’t happen, and I think the lesson here is that people hate hypocrisy in those who are quick to prosecute. Prosecutors are held to a higher standard, and people who wish to parlay their prosecutorial skills into elected positions should remember that. Ken Thompson shows us that job competence is important, but Spitzer shows us that competence laced with hypocrisy is still a losing proposition.

You can’t prosecute people for doing something you do yourself and win the support of the people. Even in New York.

LESSON 3: Democratic Prosecutors Best Have A Plan That Doesn’t Start With Rounding Up All The Black People

Assuming the Koch brothers and their sock puppet, Joe Lhota, get smoked in November (and I think they will), the overwhelming reality of this primary season is that stop-and-frisk needs to end. New York City Council speaker Christine Quinn was unraveled as that issue took center stage. Former NYC Comptroller (and black man) Bill Thompson didn’t win among black people against Bill de Blasio. Thompson was a late-adopter of anti-stop-and-frisk positions, and de Blasio hit the issue early and often. (Point of fact: the “first” guy against stop-and-frisk was current Comptroller John Liu, but scandals made him seem like an nonviable candidate.)

For lawyers who want to rise to political power, the lesson is that they better be able to show a “race-neutral” plan for preventing crime. This shouldn’t be difficult. For instance, I am black and have not committed any crimes. Breaking Media CEO John Lerner is white, and has also not committed any crimes. There’s no reason for NYPD to stop either of us, and there is certainly no more of a reason for NYPD to stop me rather than my boss if we are both engaging in the same activity of walking down the street and not bothering anybody.

You can’t use race as a shortcut to figure out effective crime prevention. Telling the people of New York that you sometimes just have to profile because somehow the black people who commit crimes cast reasonable suspicion on black people who do not commit crimes turns out to be unreasonable and a losing electoral strategy. It’s not like white bankers have to go through more rigorous SEC filings because a higher percentage of white people commit securities fraud than non-whites.

Prosecutors take note: New Yorkers want to live in a safe city, but they also don’t want to live in a racist city. If you can’t figure out how to do both at the same time, you probably shouldn’t run for office.

Being a lawyer is a great way to start a political career, especially if you are not blessed with family wealth. And based on yesterday, the rules for climbing the ladder seem pretty simple: do your job, don’t frequent prostitutes, and don’t indiscriminately harass non-white people.

Good luck, and I hope to be voting for some of you really soon.

Kenneth Thompson defeats 23-year Brooklyn District Attorney Charles Hynes [New York Daily News]
Two Democratic Senators Heading for Recall Defeat in Colorado [Election Law Blog]
The lessons of Anthony Weiner and Eliot Spitzer [Politico]

Earlier: Can Eliot Spitzer Help Biglaw’s Bottom Line From The Comptroller’s Office?

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