In a late ’80s civil trial in Richmond, Tim Kaine used a race-based legal strategy that the Supreme Court would later determine was unconstitutional: He struck potential jurors from a trial, simply because they were white.
Over recent days, the 2016 presidential contest has zeroed in on racial issues, with Donald Trump calling Hillary Clinton a bigot who has been terrible for black people, and Clinton arguing that white supremacists have co-opted Trump’s campaign to normalize their ideology. Kaine, Clinton’s running mate, has mostly kept his head down during this testy back-and-forth. Instead of leaping into the culture-war fray, he headed to Florida to go on what the campaign calls a “local small business tour.”
But Kaine—whose team didn’t respond to a request for comment for this story—has a history of grappling with racial issues head-on. And an article he wrote for the University of Richmond Law Review in 1989 provides a window into how he thought about the interplay between racial stereotypes and criminal justice. As a trial lawyer, he grappled with whether it was ethical to use racially motivated stereotypes about white and black people to try to get jurors who would favor his clients.
In at least one case, he used those stereotypes to try to shape a jury. It’s a practice that has drawn some criticism for Kaine—but also some surprising support—in legal circles. Ronald Rotunda, a libertarian-leaning attorney and a professor at the Chapman University School of Law, for one, called Kaine’s sentiment “offensive.”
Kaine opened the article, titled “Race, Trial Strategy, and Legal Ethics,” by describing of an effort he made to get a black person on the jury in a housing discrimination case. Kaine’s client, the plaintiff, was African-American. On the day of the trial, in civil court, the defendant’s attorney used a legal tactic called a peremptory strike to block three black members of the jury pool from being on the jury. So Kaine pushed back by using peremptory strikes to push three white jurors off the panel. As a result, he got one black person onto the jury.
“I struck three white veniremen, not because they were unsympathetic individuals, but purely to increase the odds that the jury would have at least one black representative,” Kaine wrote.
He wasn’t thinking about legal ethics, he added. His only concern was getting the most sympathetic jury possible—which meant betting that a black juror would have more empathy for a black plaintiff than a white juror would. That bet was based on racial stereotyping, and Kaine knew it. He also knew he wasn’t the only lawyer who used race-based assumptions in jury selections.
Kaine then wrote that using assumptions about race to craft courtroom strategy was “pervasive.” His fellow lawyers rarely talked about it publicly, he added, but they all did it. That secrecy, he added, made the strategy “ethically suspect.” But the most-cited ethical codes for lawyers, including that of the American Bar Association, didn’t mention that race-based strategizing was common. And, Kaine wrote, he found that odd.
“The notion that common stereotypes have some truth cannot, as a factual matter, be completely denied,” he wrote. “While conventional wisdom about how different ethnic groups respond in civil or criminal trials has not withstood statistical studies, the notion that a juror may be more inclined toward a party of her own race is not necessarily a racist assumption unsupported by facts.”
Kaine wrote that he was just being realistic—and that his responsibility to give his clients the best possible representation could require he sometimes traffic in racial stereotypes, as he did in the case he described.
“Most trial strategy involves ‘playing averages’ in situations where information is incomplete and consequences uncertain,” he wrote.
But, he continued, the ethics are far from clear. After all, the approach he used in the housing discrimination case “arguably delays progress towards the goal of a color-blind system” and also erodes confidence in the principles to which we claim allegiance.”
Quite the Catch-22.
“The proper response to a difficult ethical dilemma is not, however, to avoid it,” he concluded.
And the Supreme Court followed suit. A few years before Kaine’s article was published, the court ruled in Batson v. Kentucky that criminal prosecutors couldn’t use keep potential jurors from hearing a case based solely on their race. And two years after Kaine’s article ran, in 1991, the Supreme Court ruled in Edmonson v. Leesville Concrete that the same standard also applied to civil trials, like the one Kaine had described. Dilemma: resolved.
Except not really, because—as Stephen Bright of the Southern Center for Human Rights detailed—the practice of using race-based strategizing to pick jurors is still very widespread.
“We still have communities with very substantial African-American populations that never have African-Americans on juries because the prosecution strikes all the blacks,” he said.
As long as lawyers can come up with reasons for striking jurors that don’t involve race, they can get away with it. And—as Thurgood Marshall hinted in his concurring opinion on the Batson ruling—anyone smart enough to get into law school is smart enough to think up a B.S. excuse for canning jurors.
Bright gave Kaine credit for digging into the issue.
“He was ahead of the curve on this,” he said. “He was out in front of the Supreme Court, and not very many people raised these ethical issues that he raised.”
And Josh Bowers, a University of Virginia associate law professor who focuses on criminal law and procedure, said Kaine made the right decision when he pushed those three white jurors out.
“I don’t fault Tim Kaine for doing that,” Bowers said, “and to the extent that it was constitutional at the time, he may have even been to some degree professionally obligated to do so—to the extent that he thought it was in the best interest of his client.”
“Speaking as a former public defender in the Bronx, I wanted African-American jurors judging the fate of my African-American clients,” Bowers continued. “I was operating on a certain set of assumptions: that a certain set of jurors were more likely to come from the same community as my client and understand my client better. And I guess that is a race-based assumption.”
And Ilya Shapiro, a legal scholar at the libertarian Cato Institute, said Kaine did what any decent attorney would have done.
“It makes Tim Kaine out to be a very decent and thoughtful guy,” he said.
A number of other law school professors and attorneys who spoke with The Daily Beast offered similar praise to Kaine. Rotunda, meanwhile, said Kaine made an ethical lapse when he moved to push out white jurors.
“Does he really think blacks think differently, that they’re going to be prejudiced in how they vote on the jury?” he said. “I would think they, like other people, would do their best to follow the judge’s instructions, that’s what people try to do. It’s really kind of offensive to say, ‘I want you there because I know what you’re going to think.’ That’s troubling.”
Troubling, candid, or just plain strategic—it depends on how you look at it.
Regardless, Kaine gave a forthright explanation of a dicey ethical situation. It’s the kind of nuance that’s been notably absent from this 2016 campaign.