From The Defense Table To The Bench: The Importance of Public Defenders As Judges

On Wednesday, the Senate Judiciary Committee will hold its first hearing on President Biden’s judicial nominees. Among the eleven highly qualified lawyers nominated thus far are four with experience as public defenders who have dedicated their legal careers to the principle of equal justice for all, most notably Court of Appeals nominees Judge Ketanji Brown Jackson and Candance Jackson-Akiwumi. While past presidents have appointed some defense attorneys to the bench, the number nominated by the Biden Administration as part of his first slate is noteworthy, and they should be swiftly confirmed.

Every year, federal courts oversee thousands of criminal trials, and judges’ decisions directly impact the safety, rights, and legal protections of all Americans. Federal courts are on the front lines of the fight for equal justice; over 93,000 criminal cases were filed in these courts in 2020 alone. These federal courts, up to and including the Supreme Court, decide cases that reach the heart of our constitutional right to be treated fairly when suspected, accused, or convicted of a crime. At a time of increased focus on historic inequities in the justice system, it is especially critical for judges to ensure fair administration of justice — free of racial, ethnic, gender and other biases.

While many former prosecutors have gone on to be outstanding jurists with a deep commitment to equal justice, they certainly can’t be the only attorneys with criminal experience considered qualified to sit on the bench. Yet, as Alliance for Justice found in a 2014 report, the overwhelming number of nominees who practiced criminal law were prosecutors and not criminal defense attorneys. Before Joe Biden’s recent nominees, only three of the 166 current judges sitting on the courts of appeals appellate judges spent the majority of their careers as lawyers working as state or federal public defenders: Judges Bernice Donald on the Sixth Circuit, Jane Kelly on the Eighth Circuit, and Robert Wilkins on the D.C. Circuit.

As fierce advocates for everyday Americans facing the full might and power of the state, defense attorneys are highly qualified to serve as lifetime judges; the more that are nominated and confirmed, the better our justice system will be.

This is particularly important now. The American criminal justice system faces a serious legitimacy crisis. Nearly 1,000 people are killed by law enforcement officers every year — never even having the opportunity to plead their case or for their lives before a judge. Americans of color bear the overwhelming brunt of these unadjudicated killings; for example, Black Americans are killed by police officers at a rate almost twice as high as white Americans. Unsurprisingly, this gap in experiences with law enforcement is echoed by a sharp divide in how fair and just Black and white Americans perceive our legal system to be.

The federal judiciary is often the last defense for vulnerable Americans fighting for their civil rights and liberties. While America’s judges do not actually act in concert with police officers in the field, they are inevitably painted by the same brush as key, highly visible representatives of the criminal justice system. This crisis of legitimacy intensifies when criminal defendants do make it to the courthouse only to be confronted by judges who, before donning the black robes of neutrality, largely worked together with the police as prosecutors. This perception of a rigged legal system flies in the face of the concept of blind justice and threatens the core of our democracy.

Like increased demographic diversity, more professional diversity on the bench would help address the judiciary’s legitimacy crisis. When Americans from historically marginalized communities can have their disputes heard by judges that reflect their own diversity and the great diversity of our nation, it inspires confidence in the fairness and equality of our judicial system. Similarly, everyday litigants’ confidence in the courts is bolstered when they come before judges who spent their legal careers representing more than powerful corporate or state interests. Confirming more jurists from underrepresented demographic and professional backgrounds will help decrease the centuries of mistrust that our judicial institutions have earned from marginalized members of our society and thus strengthen our democracy and rule of law.

But judicial decision-making itself is also legitimized and enriched when judges have different professional backgrounds and career paths. As AFJ wrote in 2014, “When judges come from all corners of the legal profession — and particularly when they’ve worked in the public interest, representing those whose voices are otherwise rarely heard — they are equipped to understand the views of each litigant before them, and to render more informed, thorough decisions.” AFJ emphasized: “When a judge decides whether a claim is ‘plausible,’ or whether a witness is ‘credible,’ or whether police officers, when they stopped and searched a pedestrian, acted ‘reasonably,’ her determination is necessarily influenced by the nature of her work as a lawyer up to that point.” Seven years later, the perspectives of former public defenders are still lacking on the federal courts and our legal institutions and nation suffer in their absence.

Public defenders uphold the most important guiding principles of our nation: the notion that every person is deserving of a robust defense no matter their charge and that the state must not be allowed to bring its full force to bear on the defenseless. They safeguard these lofty ideals all while fighting for real people, the least fortunate among us socioeconomically, facing the most challenging times of their lives. The benefits that more public defenders would bring to our federal courts system are immense, both in terms of improved decision-making by more judicial panels featuring judges who have experience fighting for civil liberties and by increasing Americans’ faith in our legal system’s ability to produce blind justice and fair results.

Too often, when public defenders have been considered for judgeships, attacks have been vicious. Judicial Crisis Network aired vile ads against Jane Kelly because of who she represented. Louis Butler, a judge in Wisconsin, faced despicable attack ads because of his work as a public defender.

We can hope, though, that Republicans will treat Biden’s eminently qualified nominees differently. Sen. Chuck Grassley and nearly all Senate Republicans supported Jane Kelly. Republicans supported Trump judges who worked as criminal defense attorneys, like Anuraag Singhal, who represented a serial killer, among other violent criminals. In 2010, Sen. Lindsey Graham noted that, as a defense lawyer in the military, he represented people who “were charged with some pretty horrific acts, and I gave them my all. This system of justice that we’re so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.” And, it was Chief Justice John Roberts (who did pro bono work on behalf of a convicted murder) who, in his confirmation hearing, celebrated John Adams for representing soldiers charged in the Boston Massacre (what Adams called “one of the best Pieces of Service I ever rendered my Country”).

The Biden administration should be celebrated for nominating brilliant lawyers who chose to represent the neediest clients and our critical constitutional values. President Biden’s nominees who go before the Senate Judiciary next week must be confirmed and must not be the last.