Most Americans rightly focus on important decisions made by the Supreme Court when they think about the federal judiciary. But President Joe Biden’s first year in office has offered an important reminder that who is appointed to circuit and district courts has a huge impact on the lives of Americans.
Biden has ushered in a quiet revolution in what type of lawyers get selected for the federal judiciary. Less than a year into his presidency, he has matched the record for the number of public defenders nominated to the powerful courts of appeals―a record set by former President Barack Obama during his entire eight years in office.
Biden has already nominated 17 former public defenders to the federal bench.
However, that should only be the start.
For too long, appointees to the federal bench have been a fairly homogeneous group. Over decades, presidents have mostly picked former prosecutors and corporate lawyers for top judgeships.
With the nation’s highest court hearing only a minuscule percentage of the cases litigated each year, these appointments should not fall below the radar.
You might think that, as current and former prosecutors, we would be clamoring for the president to prioritize people with prosecutorial experience for federal judgeships. But, as individuals who have also worked closely in or with the judiciary, we know that our nation’s courts need a balanced set of perspectives.
Just as it’s no longer a near-certainty that elected DAs will come from a crop of career prosecutors, it should no longer be the norm for prosecutors to dominate the judiciary.
When Biden assumed office, former prosecutors in the federal judiciary outnumbered former defense attorneys four to one. This skewed phenomenon has intensified in recent years; former President Donald Trump’s picks reflected a ratio of ten to one.
The mismatch goes all the way up to the Supreme Court, where a former criminal defense lawyer has not sat on our nation’s highest court since Thurgood Marshall retired three decades ago.
Many former prosecutors serve admirably on the bench, but their systematic overrepresentation in these influential positions can impact the judiciary in concerning ways.
All of us inevitably are shaped by our past experiences; and having few judges who bring direct experience with the problems and challenges faced by criminal defendants can erode the confidence of people accused of crimes and their families that they will be heard and fully understood.
Research shows that judges from different professional backgrounds necessarily reach different conclusions, even in civil cases.
This is not meant to vilify prosecutors who ably serve as judges. Rather, it is about creating a well-rounded system with a diversity of perspectives, where everyone can trust they will be given a fair hearing.
Public defenders bring a deep understanding of how the system treats people accused of crimes and how it treats low-income people in general. As former public defender Judge Ketanji Brown Jackson explained, “Most of my clients didn’t really understand what had happened to them…. [As a judge,] I take extra care to communicate with the defendants who come before me in the courtroom.”
By changing who sits on the bench, we can also encourage young lawyers to pursue the often challenging and lower paying work of serving as public defenders. Promising law school graduates who aspire to become a judge often feel pressure to go to a corporate firm or a prosecutor’s office to preserve that option.
We need to change that.
Biden has embraced the need for more public defenders on the bench. More than one-third of his nominees to federal courts are former public defenders, and his pick for a New York based circuit court judgeship brings the most public defense experience of any federal circuit court judge in history.
Unfortunately, the response to these nominees from several Republican senators underscores that change won’t come easily.
At Judiciary Committee hearings, senators attacked Biden’s nominees as potentially biased or unprepared for the judiciary because of their work as public defenders. These attacks reflect a fundamental misunderstanding of the job of public defenders.
When public defenders vigorously defend the right of every defendant to a fair trial, they are not protecting some narrow partisan interest. They are protecting the constitutional rights all of us depend on.
And while any lawyer appointed to the federal bench will face a steep learning curve once confirmed, the hard work of being a public defender is undoubtedly as good preparation as any other for the job.
Biden should not be deterred by this baseless opposition. Thankfully, he has not been so far.
The work of creating a balanced federal judiciary that respects all voices in our criminal legal system will not be accomplished overnight, but the president has made significant progress already.
Those of us who care about fixing our broken criminal legal system should offer our enthusiastic support for these efforts to nominate judges from all parts of our profession, and call out unfair attacks when they come, so that we can build the balanced and diverse judiciary that communities deserve and that benefits all of us.
Additional Reading: The Courthouse Lottery: Wide Sentencing Differences Among Federal Judges, The Crime Report, Oct. 1, 2021.
Why We Need Federal Judges Who Are Former Public Defenders, by Orion de Nevers, The Crime Report, Aug. 17, 2020.
Diana Becton is the District Attorney in Contra Costa County, Calif. and served for 22 years as a judge in Contra Costa County, where she was elected as Presiding Judge. John Creuzot is the District Attorney in Dallas County, Tex., and spent 21 years as a Felony District Court Judge. Miriam Aroni Krinsky is the Executive Director of Fair and Just Prosecution, a former federal prosecutor, and a former member of the California Judicial Council.