Consider This from NPR - Why Do So Few Public Defenders Become Judges?

Episode Date: March 19, 2022

Senate confirmation hearings begin next week for Supreme Court nominee Judge Ketanji Brown Jackson. If she is confirmed she will be the first Black woman on the high court and the first public defender. Judge Jackson served as a federal public defender between 2005 and 2007. She defended several Guantanamo detainees and others accused of crimes, a fact that her critics use to suggest that she works to free terrorists and put criminals back on the street.The 6th Amendment to the Constitution guarantees every criminal defendant the right to an attorney. The right to have effective counsel, along with presumption of innocence are the basic principles of fairness in our legal system. But too often, having worked as a defense attorney is a stop sign on the road to the bench.We speak with Martin Sabelli, president of the board of directors of the National Association of Criminal Defense Lawyers. He explains why our legal system needs more judges with a background in criminal defense.In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

On Monday, Senate confirmation hearings begin for Judge Katonji Brown-Jackson, President Biden's nominee to replace retiring Justice Stephen Breyer on the Supreme Court. She is no stranger to Senate hearings. Over the course of her career, she's been confirmed three times for the United States Sentencing Commission, to the Federal District Court, and just last year to the U.S. Court of Appeals for the District of Columbia. Looking at this slate of nominees, I'm struck that they not only bring qualifications that are extraordinary, but also demographic and professional diversity. During last year's confirmation hearings for Judge Jackson and

four other nominees, Illinois Democratic Senator Dick Durbin praised the ethnic and cultural diversity of the nominees, all of whom were people of color. We need it on the federal bench. He also singled out Judge Jackson, along with Candace Jackson-Acumy, who was nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit, for one additional qualification that caused their nominations to stand out. Both circuit court nominees are former federal public defenders and will, as a result, bring that perspective and experience that is far

too often missing on the bench. The sixth amendment to the U.S. Constitution guarantees a criminal defendant the right to an attorney. But even for the most highly qualified judicial nominees, it seems that having public defender on their resume is a stumbling block and for some even a do-not-enter sign on the road to the bench. Here's an exchange between Arkansas Republican Senator Tom Cotton and Judge Jackson during her confirmation hearing for her current post on the Court of Appeals. Like Senator Cotton, Judge Jackson received both her undergraduate and law degrees from Harvard. She'd also served as a law clerk for Justice Stephen Breyer, whom she's now been selected to replace, and she'd held other significant positions in the law.

Yet, it was her work as a federal public defender from 2005 to 2007 that Senator Cotton chose to focus on. Judge Jackson, in your career before you were a judge, have you ever represented a terrorist at Guantanamo Bay? About 16 years ago when I was a federal public defender. Okay, and was that case assigned to you as a federal public defender? It was. Who was the client that you had? Oh, Senator, I don't remember the name. Okay, could we get that for the record, please?

Sure. Thank you. Consider this. Access to an attorney in criminal matters is a constitutional right. If she is confirmed, Katonji Brown Jackson would be the first public defender to sit on the Supreme Court. Yet some of her sharpest opposition is likely to come from those who criticize her for fulfilling that role.

That's coming up. From NPR, I'm Michelle Martin. It's Saturday, March 19th. It's Consider This from NPR. Late last month when President Biden nominated Judge Katonji Brown Jackson, he made history and made good on a campaign promise to nominate the first black woman to the Supreme Court. For many, it was an emotional moment. I just could feel these hot tears fall down my face. Latasha Brown is co-founder of Black Voters Matter. And even while she savored the victory, she was bracing for the backlash.

Regardless of how prepared she is, regardless of how brilliant she is, I anticipate we're going to see attacks and attacks on her character. She doesn't deserve that. But I'll just say, you know, we're ready for the fight. It's expected that Judge Katonji Brown Jackson's background as a public defender will draw even more focused attention and even criticism during the upcoming hearings than in her previous appearances before the Senate. But criminal justice advocates in the Black community feel that experience makes her uniquely qualified for the court.

Being a public defender is really, really the civil rights attorneys of our generation. Now, they're literally fighting for people's freedom every day. Brendan Woods is a Black public defender in Oakland, California. If anyone's going to be able to hold ground and to put up a fight for our civil rights, it's going to be a Black woman, a Black woman public defender. Fatima Goss Graves is president and CEO of the National Women's Law Center and a co-founder of the Time's Up Legal Defense Fund. She says the selection of someone like Judge Jackson for the high court is long overdue. And she also believes that the confirmation of someone like Judge Jackson, familiar with the realities of the criminal

justice system, who has represented individuals across the spectrum of race, class, and income, is an opportunity for the country to move towards equality. I've been thinking about how many cases of importance that have been coming before the court that so deeply affect the lives of Black women in this country, and what a loss that we have had no Black woman on the Supreme Court. Black women experience the law intimately for themselves and for their families, and they should be a part of shaping it. Judge Ketanji Brown Jackson, though, brings a wide range of experience, including experience that this court currently does not have. That's true because she has a background in part of serving as a federal public defender.

And that means that she's intimately familiar with the criminal justice system, with representing low-income individuals. While the confirmation process may raise contentious issues and political divisiveness will be on full display. Fatima Cosgraves doesn't want that to overshadow what she sees as a very hopeful moment. I think it could be a time to celebrate the fact that we are here, that we are in a moment where we are able to break this, you know, glass ceiling or cement ceiling, whatever it is. I think it could be a generational moment where younger people in this country can learn about the court and celebrate the idea that we have made this sort of progress. And I also think in a time when we are all thinking a lot about democracy as a value and operating force in our

own country, it could be a time where we as a country double down and reconnect to it. You know, it's a lot to put on one woman's shoulders, but I do think this time, this hearing, and this opportunity with Judge Jackson is one that could unite us. She also doesn't want to overlook Judge Katonji Brown Jackson's importance to future generations of Black women in law. Twenty years ago when I was leaving law school, it didn't occur to me that being on the Supreme Court was a thing that could be possible for someone like me. Actually, if I'm being really honest, it didn't occur to me to even apply to be a law clerk on the Supreme Court. And a fourth woman on the court would be one more step toward closing the gender gap on a court long dominated by men. You know, I am reminded, though, of the time when someone asked Justice Ginsburg how many would be too many women on the court, and she basically said when there are nine.

It's important for the court's own legitimacy to be reflective of this country. And I'm excited that we are moving towards that place. Coming up, why so few public defenders become judges and why that matters. In the United States, all people accused of a crime have the right to an attorney. The Sixth Amendment to the Constitution guarantees the right to effective assistance of counsel. It was in the mind of the framers when they created the Bill of Rights. But that right wasn't formally recognized by the Supreme Court until 1963. The Supreme Court recognized that it just doesn't make sense. It's unfair and it's unconstitutional and an attack on liberty, a fundamental attack on liberty,

not to have a trained lawyer besides somebody accused of a crime. Martine Cibelli is a former federal public defender who now trains public defenders in San Francisco and serves as president of the board of directors of the National Association of Criminal Defense Lawyers. Judge Ketanji Brown Jackson is the first nominee to the high court with this background and one of only a handful to sit on the federal bench. A 2020 study reported that people spending the majority of their careers in private practice or as federal prosecutors comprise more than 70 percent of the active federal appellate bench. That's in contrast to only one percent of public defense attorneys. So I asked Martine Cibelli, why this imbalance? Is it that public defenders aren't necessarily

attracted to the career path of being a judge, that they are not being considered, or that they're actually disfavored for that work when they are put forward? I would say all of the above. There are external factors and internal factors. You've alluded to one of the internal factors that many public defenders prefer to be advocates to change a system that we believe is fundamentally unfair, specifically systematically racist or discriminatory in terms of socioeconomic class and that sort of thing. But there are external factors as well. And I would say the external factors are more important than the internal factors. For example, I would say that there's an inertial problem.

There's a pattern that people look for, the folks who are choosing judges to vet in the Senate, there's a pattern. Elite law school, corporate law firm, some sort of government lawyer, prosecutor, or work in some sort of government agency. So that pattern exists. If you follow that pattern, you're less likely to rock the boat. You're less likely to have a difficult Senate battle. And who wants to get involved in a difficult Senate battle? But there's something that I would argue is a little bit deeper than that.

I would call it, if I would be choosing a polite word, it's a systemic bias. If I go to the other extreme, it's a kind of low-grade McCarthyism, I would say, a Willie Horton type thing. All you got to do is label somebody soft on crime. Say, you know, you've been a public defender. You've been making, you know, you've making our streets less safe. And that creates a political storm that makes it very difficult for somebody to get confirmed in the Senate. Are you saying that public defenders are identified with their clients' alleged conduct in a way that other people are not, in a way that corporate lawyers are not necessarily identified

with their clients' alleged conduct. Yes, that's exactly what I'm saying. I'm saying that somebody who has elected, chosen to stand beside individuals accused of crimes is looked at by, I won't say the system because the system doesn't exist really. It's players in the system. We are looked at as people who've chosen to be on that side. And therefore, there is something about us, something about our values, something about our relationship to constitutional values and public safety that is different than other players in the system.

Do you have any evidence for that? Sure. I mean, just last week, I think it was that Nina Morrison, who was a former, wasn't a public defender, but she worked in the Innocence Project, freeing people who were proved to be innocent, had been convicted of crimes and proved to be innocent. She was raked over the coals by Senator Hawley and Senator Cruz on the theory or along the line, on the argument that she had endangered public safety by, quote unquote, putting these people back on the street. Well, these people were innocent people. And the fact that they were convicted and proved to be innocent later means that whoever was responsible for that crime, a very awful crime in each of the cases that was talked about, is out on the street. And so it's easy for a senator like Cruz or Hawley to say, you're on the defense side,

you are against public safety. The Nina Morrison example is an extreme example because that person was not a public defender. She freed innocent people through litigation, and yet she was labeled a threat to public safety. Before we let you go, why should people care about whether more public defenders make it to the bench? balance. And in the last four or five years, we see that our institutions, our democratic institutions are necessary to keep us, even though we think we're safe, to keep us safe from anti-democratic movements. And the judiciary is designed to act as a check. And if that judiciary is monolithic, if it's made up principally by two slivers, former corporate lawyers and former government lawyers, we have a problem because we don't have meaningful diversity. We don't have a meaningful check on government power. So if you care about checking government power, you need to have a diversity of opinions, including people who have not spent their life allied with the government, siding with the government, or not involved in these issues. So absolutely, to preserve freedom, you need diversity on the bench, and diversity on the

bench means public defenders and criminal defense lawyers, as well as prosecutors and corporate lawyers. That was Martine Cibelli. He is a former federal public defender and the president of the Board of Directors of the National Association of Criminal Defense Lawyers. It's Consider This from NPR. I'm Michelle Martin.