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Public defenders rarely make it on the federal bench. Not anymore

Part of Biden's push to overhaul the makeup of the federal courts includes a focus on nominating former public defenders, attorneys who are historically under-represented on the federal bench.

WASHINGTON (CN) — When Charles Esque Fleming, a nominee to serve as a judge in the Northern District of Ohio, faced the Senate Judiciary committee late last year, his 30-year career as an assistant federal public defender became a point of contention. 

Republican lawmakers grilled Fleming about arguments he made when he was a court-appointed attorney representing clients charged with offenses including child pornography and sexual assault, and questioned whether he harbored a bias against the criminal justice system.

“We’ve seen a number of public defenders nominated in this administration. I’ve spoken before about the need to determine whether a nominee is a Bill of Rights judge and not a criminal defense judge. From his record, I’m concerned Mr. Fleming falls into the second category,” Republican Senator Chuck Grassley said in December.

Fleming had spent three decades as a public defender tasked with representing clients who could not afford legal counsel, a job title that 7% of active federal judges have on their resume, according to data from the Federal Judicial Center.

The Center for American Progress reported in June meanwhile that, prior to Biden's presidency, approximately 1% of federal appellate judges had spent most of their careers in roles as public defenders or legal aid attorneys.

Fleming is still awaiting confirmation in the Senate, but his nomination signals both an attempted shift by President Joe Biden to put former public defenders on the federal courts and the skepticism they face on their way to the bench.

Approximately 40% of the nominees Biden selected in 2021 to sit on the federal courts have served as public defenders at some point during their career, according to the White House.

It’s a job formally cemented into the American criminal justice system more than 50 years ago, but experts say there is a stigma surrounding the role public defenders play in the judicial system and whether they are capable of being impartial federal judges, attitudes that have long prevented attorneys for indigent clients from making it onto the federal bench.

The majority of sitting federal judges came into their lifetime appointments after careers as prosecutors and corporate attorneys, backgrounds that are overrepresented on the federal bench and historically seen among judges nominated by presidents of both political parties. 

An analysis by Joanna Shepherd, a professor at Emory University School of Law, of federal judges nominated by former Presidents Barack Obama and Donald Trump found that at least one-third of each president’s nominees had worked as federal prosecutors for three or more years. Both presidents also disproportionately nominated judges from the country’s top 200 law firms, according to Shepherd’s research.

The Precedent of Presidents

While the right to a court-appointed attorney is a given nowadays, the guaranteed existence of public defenders has only been around for a few decades, since the Supreme Court decided in 1963 in Gideon v. Wainwright that legal counsel regardless of financial status was a constitutional right.

Some states had public defender's offices decades before Gideon, but it wasn’t until the 1970s that federal public defenders' offices emerged.

The late creation of public defense as a widespread and constitutionally based field meant that decades of precedent regarding who was “qualified” to be a federal judge had already developed before public defenders entered the scene on a large scale.

The years following the creation of federal public defenders' offices were steered by tough-on-crime presidencies that focused on nominating prosecutors to be federal judges, noted Tara Grove, a law professor at the University of Alabama.

“Once you have that tendency in the federal judiciary, if you go against it, you’re bucking the trend, and people say ‘Well, gosh, this is not our typical nominee,’” Grove said.

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Obama’s administration began to look at criminal justice reform in marked shift from how the last Democratic president, Bill Clinton, had approached crime. 

Obama also placed an emphasis on changing the demographic makeup of the courts and nominated several public defenders, but he continued to disproportionately select former prosecutors to the federal bench.

“Especially in the world of the filibuster, which is the world we had until 2013, presidents of both parties wanted to pick someone it's to hard assail on, you know, grounds of not knowing the job. So how do you do that? Well, you pick someone who looks really similar to people who are already on the federal bench,” Grove said.

Before his doomed nomination by President Barack Obama to the Supreme Court, Merrick Garland was put on the D.C. Circuit by President Bill Clinton. President Joe Biden would later anoint the former federal prosecutor as his attorney general. (Official White House Photo by Pete Souza via Courthouse News)

'A Criminal Defense Judge'

Public defenders aiming to become federal judges face longstanding stigmas about the work that they do and the clients they represent. 

Former defense attorneys nominated to federal judgeships are often grilled, as in the case of Fleming, about the clients they represented in court and whether they harbor a bias against criminal punishment and the justice system as a whole.

This line of questioning a nominee’s ability to be an impartial jurist based on the cases they’ve handled is one public defenders nominated to the federal courts often must grapple with even though many don’t have a say in who they represent, according to April Frazier, president and CEO of the National Legal Aid and Defender Association.

“That particular attack on public defenders and the role that they play in this system is very troubling by lawmakers and any decision maker who does not understand the importance of the Sixth Amendment, the importance of making sure that we have an adversarial system that holds the government accountable, and also a system that we ensure that every person who is charged with a crime and facing the threat of loss of liberty [has] zealous representation,” Frazier said.

Sandra Mayson, professor at the University of Pennsylvania Carey Law School, called out the flaw in assuming that former prosecutors have the capacity to serve as neutral judges while former defense attorneys cannot.

“Prosecutors are supposed to be ministers of justice, not advocates for specific individuals, and defense lawyers represent specific individuals. But I see every lawyer as an advocate. I see no reason why former defense lawyers would have any more difficulty adjudicating cases impartially and according to the law than prosecutors would have,” Mayson said.

'This Unspoken Part'

Public defenders are often less politically networked and aware of the application process to become a federal judge as compared with other attorneys, according to April Frazier, president and CEO of the National Legal Aid and Defender Association.

Federal judgeships are some of the most highly coveted jobs in the legal field, while public defense isn’t always regarded as a high-status job.

“Since Gideon, of course there's been a widespread recognition of the importance of public defenders in theory, but, in fact, public defense hasn't had much status within the profession until very recently. I do think this is changing,” Mayson said.

Frazier said it’s impossible to separate the widespread view of public defense as a less prestigious legal field and questions about attorneys’ ability to be judges from the stereotypes and prejudices that exist about the clients they represent.

“The overwhelming majority of people who do not have the ability to afford private attorneys are people of color. So, when we see attacks on public defense, I think we also have to kind of separate out that there is still a stigma associated with the people in the community that public defenders represent,” Frazier said. "And I think this unspoken part is very much a part of the undertone, because we don't see those same types of attacks on attorneys who have worked in law firms, who provide representation to people charged with white collar offenses."

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Equal Rights for the Poor and the Rich

Who ends up as a federal judge and will spend the rest of their career ruling on questions of federal and constitutional law matters.

A 2020 study by Shepard analyzing how district judges ruled in employment dispute cases between 2015 and 2019 found that judges with a history as prosecutors or corporate attorneys were less likely than judges from differing career backgrounds to rule in favor of employees or organizations representing employees.

“When you bring judges with different professional backgrounds together, you're just going to have a better discussion about cases. And even if they end up coming to the same decision, it's going to be a more thoughtful decision. It's going to be a decision that sees all sides in a more sophisticated way,” Grove said. 

Defense attorneys and public defenders are also more likely to be women and people of color than lawyers from other backgrounds, observed Stephanie Wylie, associate director of courts and legal policy for the Center for American Progress.

“Professional diversity impacts not only, you know, ensuring that we have a federal bench — that is bringing a wealth of perspectives to the decisions they are looking at and its impact on judicial decision making — but also having that professional diversity leads to greater demographic diversity,” Wylie said. 

Having more public defenders and defense attorneys on the federal bench means more federal judges who are aware of how everyday people interact with the legal system, according to Mayson.

“Working as a public defender or on the defense side, you interact with clients, people who have been accused of crimes and their families and their communities. And that interaction over time helps you understand sort of aspects of those cases and of the legal system that it's just not possible to understand fully if you've never worked on the defense side,” Mayson said.

Cedric Powell, a law professor at the University of Louisville, said that perspective is critical to have on the federal bench as criminal justice reform becomes a more salient issue.

“I think that's going to impact sentencing. I think that's going to impact how we view the system and its legitimacy. It’s going to impact bail decisions,” Powell said. “Bringing those perspectives in will help us to critically analyze the system and the way it works.”

President Donald Trump looks toward Amy Coney Barrett before Supreme Court Justice Clarence Thomas administers the Constitutional Oath to her on the South Lawn of the White House in Washington, Monday, Oct. 26, 2020, after Barrett was confirmed by the Senate earlier in the evening. (AP Photo/Patrick Semansky)

Legitimacy, Legitimacy, Legitimacy

But many people calling for more public defenders, civil rights attorneys and defense attorneys on the courts, as well as increased demographic diversity, say it’s not just about how the courts perceive cases, it’s about how people perceive the courts. 

“We know it matters, because when we walk into courtrooms across America, when people stand before those courts, they should be able to have a sense that justice will prevail,” Frazier said.

Questions of legitimacy have also begun to plague the federal courts in recent years, with Trump's appointment of three Supreme Court justices, fraught judicial nomination hearings and a politically stacked Supreme Court docket amplifying those concerns.

“The former president changed the American judiciary for a generation and now we're certainly playing catch up,” Powell said. “Those judges and justices have a particular conservative viewpoint, that's fine. But it has slanted [the courts] so far to the right that people will question the legitimacy of the judiciary. And so one thing that the Biden administration is doing, I think, in pursuing diversity, is trying to give balance to the judiciary so that the American people would have confidence in the legitimacy of its rulings.”

Mayson said this push for more public defenders on the federal courts may also change how people view the profession of public defense itself.

“Not only will having former defense lawyers on the federal bench improve the federal judiciary, but it will help to raise the status of public defenders within the profession and increase recognition of the critical role they play in making our justice system work,” Mayson said.

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