Long-time readers know I have been talking a long time about the prosecutorial tilt that impacts who gets nominated and confirmed for seats on the US Supreme Court and lower federal courts. Encouragingly, the need for more balance in the courts is getting more attention as criminal justice reform continues to garner attention (especially among would-be Democratic Prez candidates). Consider, for example, this piece on this topic at Slate by Kyle Barry under the headline "Democratic Presidential Candidates Should Promise to Appoint This Kind of Judge to the Federal Courts." Here are excerpts:
The lawyers who best understand the importance of [the Constitution's] basic protections, of course, are public defenders. And the Supreme Court hasn’t had a justice with significant experience representing indigent criminal defendants since Thurgood Marshall, who founded the NAACP Legal Defense Fund, retired in 1991. Two current justices — Samuel Alito and Sonia Sotomayor — worked as prosecutors. The rest have no hands-on experience with the criminal justice system, creating what Washington Post columnist Radley Balko has called a “massive blind spot” in the court’s decision-making.
This absence of experience extends beyond the Supreme Court to the entire federal judiciary. Former public defenders are woefully underrepresented on both the trial-level district courts and the circuit courts of appeal, while experience as a prosecutor remains a common and largely unquestioned career path to the federal bench.
The issue is cross-partisan and deeply systemic. Much like how the policies that created America’s mass incarceration crisis were bipartisan — with Republicans and Democrats competing to appear most tough on crime — so too has been the impulse to tap prosecutors over public defenders as federal judges. According to the advocacy group Alliance for Justice, more than 40 percent of President Barack Obama’s judicial nominees were prosecutors, outnumbering public defenders by three to one.
The problem has only worsened under President Donald Trump. Trump’s judicial appointees lack diversity along any metric. They are 91 percent white and 76 percent male. Just one of his 91 confirmed judges is black. Still, the lack of criminal defense experience is extreme. By reviewing the Senate Judiciary Committee Questionnaires for all of Trump’s 143 confirmed or pending judicial nominees who have submitted one (a handful of recent nominees have not), I learned that not one has worked full-time as a state or federal public defender. One, Clifton Corker, a pending nominee to the U.S. District Court for the Eastern District of Tennessee, reports one year as a “volunteer” federal defender. That’s it.
By contrast, more than one-third of Trump’s nominees have worked as prosecutors, including 38.3 percent of his district court nominees and 33.3 percent of his circuit court nominees. And that’s with a narrow definition of “prosecutor” that excludes lawyers, like Gorsuch, who served in high-level executive branch positions but did not personally prosecute cases....
Obama’s penchant for choosing prosecutors culminated in the nomination of Merrick Garland, a former prosecutor, over Jane Kelly, a former public defender, to the Supreme Court in 2016. Once Kelly, a judge on the 8th U.S. Circuit Court of Appeals, was reported to be a finalist, conservative groups used her public defense experience to launch a smear campaign and paint her as a threat to law and order; an especially offensive tactic given that Kelly was herself the victim of a violent assault. Yet it also betrayed an important truth: While Gideon’s promise of robust public defense is both celebrated and stigmatized, the stigma is baked into traditional notions of the ideal, critique-proof judicial nominee. Prosecutors have faced no such hurdle.
For progressives, the Trump era has ignited perhaps unprecedented interest in the courts and judicial nominations. On issues from immigration to the environment to voting rights, just to name a few, the federal courts have been the primary check on the Trump administration’s often cruel and discriminatory policies. And Trump’s nomination of Brett Kavanaugh to the Supreme Court, along with a flock of far-right and in many cases grossly incompetent nominees to the lower courts, sparked outrage that has echoed through the halls of Congress and beyond.
But what is the flip side of that outrage? What kind of judicial nominees should progressives demand? Part of the answer is obvious: more public defenders. Indeed, a pledge to appoint at least as many public defenders as prosecutors to the federal bench is a tangible way for presidential candidates to show commitment to dismantling mass incarceration while at the same time charting a path forward for the courts. There is now real opportunity to start a new narrative around judicial selection, one that rejects the stigma attached to public defenders and the mythical neutrality of prosecutors.
A few prior related posts from years past:
- Making (belated) case for a Prez to "choose nominees who will help dismantle mass incarceration" (from 2019)
- "There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem." (from 2016)
- Might any Prez candidate pledge to put a criminal defense attorney on the Supreme Court? (from 2015)
- Noticing the biggest bias in the federal judiciary (from 2009)
- Developing a SCOTUS short list of district court judges (from 2008)
- Will the next SCOTUS nominee have any criminal law background? (from 2005)
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