Noticing the notable number of public defenders among Prez Biden’s judicial nominations

August 17, 2021

In this post a few weeks after Prez Biden assumed office, I asked “So what’s a reasonable expectation for how many of Prez Biden’s judicial nominees will be criminal defense or civil rights lawyers?”. In that post, I noted the data showing the federal judiciary is badly skewed with a disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience, and I was hopeful Prez Biden would look to bring more balance to the federal bench.

Just over six month later, two new pieces detail that Prez Biden’s track record here is pretty good and why this should be celebrated. Consider first this Bloomberg Law piece headlined “Public Defender Bench Aspirations Emboldened by Biden Nominees.” Here is an excerpt:

President Joe Biden’s nomination of several public defenders is part of a broader effort to add professional and demographic diversity to the judiciary…. Many federal public defenders who’d felt shut out from the bench now see their skills getting overdue recognition by the political establishment. Biden’s nominations also may convince law students that “they’re not closing that door to being a judge just because they might pursue their public defender aspirations,” said Rachel Barkow, a New York University law professor.

Twelve of Biden’s 33 nominees so far for lifetime federal judicial appointments have public defender experience, and a handful of them have been confirmed. They include Ketanji Brown Jackson, a former D.C. federal trial court judge and federal public defender, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. Candace Jackson-Akiwumi, a former federal public defender in northern Illinois, was confirmed to the Chicago-based Seventh Circuit.

And at MSNBC, Chris Geidner has this new opinion piece headlined “Biden outshines Trump — and Obama — by appointing public defenders as judges.” Here are excerpts:

Last weekend, the Senate confirmed Eunice Lee to a judgeship on the U.S. Second Circuit Court of Appeals…. Lee’s confirmation is remarkable for one due the fact that the judicial landscape is completely unrepresentative of the legal profession — and has been for a very long time. Her confirmation is a single, but important, effort to confront this imbalance.

If that sounds dramatic, just look at the number of judges with backgrounds as prosecutors. As things stand, they overwhelmingly outnumber those with backgrounds as public defenders. That imbalance is even more dramatic if you’re looking more broadly at whether the judge’s experience before taking the bench was in representing the government in any role or opposing it….

The law as we know it — or, more bluntly, as it is — is dramatically skewed by the experience imbalance among our judges. Broad swaths of the law like the court-created doctrine of qualified immunity — the protection against most lawsuits that government officials, particularly police officers and prison guards, receive — have been created by judges whose experience was often as prosecutors or otherwise representing the government’s interests instead of individual people’s interests….

Biden’s election over Trump raised hopes for a course correction in the federal judiciary. More than that, there also are the beginnings of change on the state level. This week, lawmakers in Virginia approved eight new judges to an expanded appeals court in the commonwealth, adding “two current and former public defenders and a longtime legal aid attorney — professional backgrounds that have never before been represented on one of the state’s high courts.”

These steps are good, but we can’t lose sight of the fact that they are just that: steps. Let’s assume that Biden continues nominating significant numbers of public defenders to the bench and, more unlikely, that other states take Virginia’s lead regarding their state courts. Even then, this imbalance on the bench would continue for the near future. It would take two or three presidencies, and an overwhelming number of governors and state lawmakers working to change their judiciaries, to see a real shift in the scales of justice.

These new judges being added to the mix, though, will nonetheless have an incredible opportunity, a chance to bring new perspectives to their colleagues and, through their opinions, to those of us who live under their rulings. They will be in the position to put some intellectual weight on the other side of the scale.

A few of many recent prior related posts: