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.