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. – READ MORE