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The Rise of Public Defense Attorneys on the Judiciary

As the senate moves toward a Supreme Court confirmation for Ketanji Brown Jackson — the first Black woman to be nominated and the first former public defender in a generation — experts consider the importance of criminal defense experience on the bench.

U.S. Supreme Court Nominee Ketanji Brown Jackson meets with Sen. Sherrod Brown (D-OH) in his office on Capitol Hill this week in Washington, D.C. (Kevin Dietsch/Getty Images)

President Joe Biden’s nomination of Ketanji Brown Jackson to the Supreme Court of the United States marked a historic occasion: Jackson is not only the first Black woman ever to be nominated to the court, but also is the first ever public defender and the first former criminal defense attorney to get the nod in a generation. The last with significant defense experience was Thurgood Marshall, a one-time civil rights lawyer who left the court in 1991.

Ilham Askia

The fact that President Biden nominated Judge Jackson is a huge step forward in the movement to balance the judiciary,” said Ilham Askia, executive director of Gideon’s Promise, an organization that educates public defenders on providing justice for marginalized people. To have someone on the bench who understands what it means to represent economically disadvantaged people in the criminal legal system — who are disproportionately people of color — that’s a win for justice.”

The nomination marks a high point in a recent bipartisan trend of appointing and electing former public defenders to the judiciary, a corrective to a long-standing norm almost exclusively favoring those whose résumés include time as prosecutors, in academia, or in private practice. 

Pamela Metzger

Black women have held up our democracy and have formed many of the best practices we see in public defense,” said Pamela Metzger, director of the Deason Criminal Justice Reform Center at Southern Methodist University Dedman School of Law. Metzger pointed to leaders in the field like Kim Taylor-Thompson, an expert on criminal defense at New York University, and Avis Buchanan, director of the Public Defender Service of Washington, D.C. These are women who have been leaders of the finest public defense organizations in the nation.”

They Have Been in the Trenches’

As of 2020, only 7% of all federal judges were former public defenders, and on the federal appellate bench the margin was even slimmer, with just 1% of judges having spent the majority of their careers as​public defenders or legal aid attorneys.

Since his election, President Biden has focused on appointing former public defenders to the federal bench. In 2021, around 40% of his nominees for the federal judiciary had served as public defenders at some point during their career, the White House reports. The president appointed five former public defenders to the federal court of appeals during his first year in office, the same number that President Barack Obama confirmed over eight years, and the administration has been clear that it intends to continue this approach.

7%

Proportion of all federal judges were former public defenders as of 2020

Appointing criminal defense attorneys brings an important and underrepresented viewpoint to the bench, experts say. Lawyers become public defenders generally because they believe that everyone deserves zealous representation and the presumption of innocence before trial,” said Ezekiel Edwards, a vice president of criminal justice at Arnold Ventures who oversees pretrial reforms. Just as we have had former prosecutors on the bench for many years, we need perspective from lawyers who have defended people accused of crimes, heard their stories, talked to their families, and understand the deep harms of being arrested, accused, and imprisoned.”

As judges, former public defenders may be especially attuned to observing the constitutional rights of the defendants, including those that pertain to search and seizure, self-incrimination, right to counsel, impartial juries, burden of proof, and cruel and unusual punishment.

If you’ve got someone on the bench who is familiar with litigating those issues and making those legal arguments, that’s hugely important,” said Jason Daniel Williamson, executive director of the Center on Race, Inequality, and the Law at the New York University School of Law. Someone who has a public defender background is going to be better equipped to interpret what occurred in a criminal case than someone who doesn’t have that background.”

Williamson explained how this can affect outcomes, pointing to an example from his own experience as a litigator. When he was an attorney for the American Civil Liberties Union, he and his colleagues argued for expanded public defense services in Idaho and were successful in arguing before the Idaho Supreme Court that the case should go forward over the state’s objection. Then-Chief Justice Roger Burdick, he learned, was a former public defender himself. I don’t doubt that his understanding of and willingness to listen to our arguments in that case were impacted by his professional experience,” Williamson said.

Because of their work directly with clients, former public defenders also bring a unique understanding of the stories of the accused, their humanity, and the massive toll the criminal legal system can take on them. That includes not only the impact of incarceration on families and communities, but also the day-to-day burdens of even minor justice involvement, like missing work and finding child care during court dates. Such experience informs the way they look at a case.

As judges, public defenders come from a perspective where they have been in the trenches with people who are going through the system,” Askia said.

Another major asset public defenders bring to the judiciary is trial experience, something many judges lack. Having made arguments, issued motions, and litigated procedural issues that regularly arise in representing clients places former public defenders at an advantage when interpreting arguments from the bench.

As judges, public defenders come from a perspective where they have been in the trenches with people who are going through the system.
Ilham Askia executive director of Gideon’s Promise

Having members of the court who have been in the real world when it comes to the practice of law is invaluable to their understanding of facts and legal arguments, as well as the impact that their decisions will have,” Edwards said. Too often the substantive and procedural arguments put forth on appeal by people convicted of crimes are not given the time, attention, and seriousness required. Lawyers who have been in the trenches and made those same arguments themselves can help change that.”

Trial experience, Edwards said, is not limited to public defenders. Supreme Court Justice Sonia Sotomayor, for example, served as a district attorney in New York for more than four years during her career, an experience he believes benefits her legal decision making. Her understanding of criminal procedure in practice, her grasp of facts as they apply to criminal cases, and her understanding of the practice of law in criminal courts really undergirds and strengthens her jurisprudence on those issues,” he said.

Bipartisan Movement for Public Defenders on the Bench

Today, electing and appointing former public defenders to the judiciary is not limited to progressive jurisdictions; it enjoys some degree of bipartisan support. In California, former Governor Arnold Schwarzenegger, a Republican, appointed to the bench a host of one-time criminal defense attorneys, including Judges Jacqueline My-Le Duong, Henry J. Hall, Debra Harris, and Gary Y. Tanaka.

Such bipartisan consensus makes perfect sense, said Rebecca Silber, a director of criminal justice at Arnold Ventures who oversees public defense work. The rights of the accused, an issue dear to criminal defense attorneys, should also resonate with politicians on both sides of the aisle.

Strict interpretations of the Constitution, a meaningful right to counsel, and the speedy trial the Sixth Amendment guarantees are issues that both Democrats and Republicans can get behind,” Silber said. They should be a high priority for anybody who cares about the legitimacy of our justice system.”

Across the country, more public defenders have been elected or appointed to the bench, reversing a long-held norm that has favored a different kind of resume. In Harris County, Texas, Natalia Cornelio, who was a federal public defender before serving as the director of criminal justice reform at the Texas Civil Rights Project, was elected to the criminal bench in 2020. It’s a cultural shift,” Cornelio said of her election. Having directly represented people as a public defender is invaluable to the decisions I have to make on the bench that impact people.”

The judge explained that her experience working with indigent clients has, for example, taught her to listen more attentively to defendants, victims, and their families, and talk through their options. To the extent that there are choices that can be made by the people who are most impacted by a crime, I try to engage with those people and allow them to make those choices,” she said.

Cornelio joins another former public defender in Harris County, Judge Genesis Draper, who was appointed to the criminal bench in 2019. And in 2018, Harris County elected a slate of former criminal defense attorneys, including Franklin Bynum and David Singer, to the misdemeanor bench. Although both were recently defeated in a primary election, they played a crucial role in settling a historic bail lawsuit that ended pretrial practices under which poor Houstonians were often jailed on low-level charges while wealthier people went free.

New Orleans has also been a part of this trend. In 2020, an organized campaign to flip the bench” ran seven former and current public defenders for judicial offices across the criminal, municipal, and juvenile courts in Orleans Parish and succeeded in electing Angel Harris and Nandi Campbell as judges on the criminal court. The motivation was to install more judges with experience representing poor and marginalized communities.

People Are Paying Attention to Public Defense’

If confirmed, Jackson’s appointment will highlight the important role and experience of public defenders nationally in upholding the Constitutional rights of the accused, particularly among the poor and people of color. Advocacy organizations like Gideon’s Promise; the Center on Race, Inequality, and the Law; and the Deason Criminal Justice Reform Center, which have long devoted their efforts to better support for public defenders, see that development as a net good.

Metzger noted that too often, the same person who sits on the bench today was trying not long ago to put defendants in prison. The power of the courts, she explained, is concentrated against the accused, and that can create the impression that the system is rigged” against them. The nomination of Jackson — and the many other former public defenders elected and appointed to the bench across the country in recent years — is a crucial change. It has the potential to increase the legitimacy of the courts in the eyes of lawyers, defendants, and victims alike.

In every field of human endeavor, we do better when there is diversity,” said Metzger. And in the legal field, diversity of practice experience is critically important. When those in the trenches see that power is spread more evenly across the criminal legal system, I think it enhances everyone’s sense of fairness in the process.”

Askia holds out hope that this growing practice could spread, making appointments of former public defenders to the judiciary more frequent on state and local courts, and even bringing their perspective elsewhere in the system. People are paying attention to public defense,” Askia said. And if they’re doing it in the judicial branch, then hopefully that will spill over into areas of the criminal legal system.

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