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Biden outshines Trump — and Obama — by appointing public defenders as judges

The law as we know it is dramatically skewed by a judiciary experience imbalance.
Image: Judge standing in front of defendants and lawyers
This change is good — if long overdue.rubberball / Getty Images

Last weekend, the Senate confirmed Eunice Lee to a judgeship on the U.S. Second Circuit Court of Appeals.

When asked by the Senate Judiciary Committee for “your typical clients and the areas at each period of your legal career, if any, in which you have specialized,” Lee’s response was as rote as it was remarkable.

The Biden administration appears to be placing a priority on chipping away at this imbalance.

“For the entirety of my legal career, my clients in both state and federal court have been poor and working-class people convicted of felony offenses. In state court, my cases included many theft, drug-related, and violent offenses,” she responded. “My federal practice likewise has included many theft and gun-related offenses.”

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.

That experience imbalance, in turn, leads to those judges all too often interpreting the law in a way that ultimately makes it a stranger to many of the people whose lives it controls. No, experience isn’t everything, and there are exceptions, but the exceptions — and the law the prosecutor-heavy judiciary has advanced — prove the dangers of this imbalance. That’s not good in a system where respect for “the rule of law” is essential to keeping everything in society moving forward — and is one of the reasons why attention to demographic diversity in the judiciary is so important. That same attention has not been given to professional, or experiential, diversity.

Lee is a career public defender, first for more than 20 years with the Office of the Appellate Defender in New York, and then for Federal Defenders of New York since 2019. Her job is not unusual; thousands of lawyers in every state spend their career working in criminal defense, with many of them serving as public defenders.

In Biden’s first six months in office, he pushed as many nominees with significant public defender experience for the appellate bench as Obama did in eight years.

Their role is an essential one: More than 50 years ago, the U.S. Supreme Court held, in Gideon v. Wainwright, that every state was required to provide a lawyer for indigent defendants. The Constitution required so as a matter of “fundamental fairness.” Although the specifics of how to do so have been left predominantly to the states, leading to extremely divergent levels of defense, the requirement means that Lee and others like her help to balance out those metaphorical scales of justice to craft a justice system worthy of its name.

And yet, more than 50 years later, within the ranks of those who decide cases — within the state and federal judiciary — the scale is so unbalanced it can hardly even be considered a scale.

A recent study of federal judges by the conservative Cato Institute backs up that disparity with data. “Former prosecutors outnumber former defense lawyers by a ratio of 4‐​to‐​1, with those representing government in criminal or civil proceedings outnumbering those litigating against the government by a ratio of 7‐​to‐​1,” Clark Neily and Devi Rao, of Cato and MacArthur Justice Center respectively, wrote in summary. Lee, in fact, is the first federal defender to serve on the Second Circuit.

While President Barack Obama placed a heavy emphasis on addressing demographic diversity in his administration’s judicial nominations, there was far less attention paid to this question of experiential diversity. One 2014 study from the liberal Alliance for Justice found that Obama had nominated more than two times as many former prosecutors as former defenders to the bench. The Trump administration was far worse, nominating — among judicial picks with criminal law backgrounds — almost exclusively those with prosecutorial experience (a 10-to-1 imbalance, Cato’s study found).

Before President Joe Biden took office, only one current federal appellate judge in the country, Judge Jane Kelly (who Obama nominated to the Eighth Circuit Court of Appeals in 2013), had a similar background to Lee’s. Two others, Judges L. Felipe Restrepo and Robert Wilkins, had significant public defender experience, but Wilkins spent a decade before his judicial nomination working for a corporate law firm and Restrepo spent a decade in practice at his own criminal defense and civil rights firm. The last Supreme Court justice to have any significant criminal defense experience was Thurgood Marshall — who left the high court 30 years ago this fall.

The Biden administration appears to be placing a priority on chipping away at this imbalance. Lee was Biden’s second appellate nominee with significant public defender experience to be confirmed by the Senate; another is awaiting a final Senate vote. In other words, in Biden’s first six months in office, he pushed as many nominees with significant public defender experience for the appellate bench as Obama did in eight years.

These steps are good, but we can’t lose sight of the fact that they are just that: steps

Almost as importantly, none of Biden’s nominees to federal appeals courts so far are former prosecutors. Two do have experience representing the government as appellate lawyers, meaning that some of their cases likely involved upholding criminal prosecutions and convictions, but they were not career prosecutors by any stretch.

Biden’s district court nominees also include several with public defender experience, some extensive, and a smaller number of former prosecutors than was normally expected to be nominated for vacancies than in the past.

This change is a good, if long overdue, one. 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.

The imbalance has affected cases on a statute-by-statute-level as well. As Neily and Rao highlighted, for example, judges have interpreted the federal anti-bribery law to allow prosecutors, and only prosecutors, to pay witnesses.

In short, the impact of the experience imbalance changes the way the rest of us are left operating in the world. Now, however, the effects of this imbalance are finally being examined. The past years’ attention on criminal justice issues — from policing protests to prosecutor elections to sentencing disparities — has likewise led to an increased focus on the role judges play in these systems.

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.