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With the confirmation of Ketanji Brown Jackson, we have passed two milestones on the road to meaningful diversity on the federal bench: the confirmation of a Black woman and the confirmation of a former federal public defender. We have passed these milestones thanks to Justice Jackson’s virtually unprecedented qualifications and President Biden’s admirable commitment to diversifying the bench. While I celebrate these historic achievements, let me rain on the party by stating the obvious: We are a long way from the goal of meaningful diversity on the federal bench.
In this column, I want to focus on the need for diversity to ensure that the government does not overstep its constitutional authority. I want to begin by noting that virtually anyone who offered an opinion regarding Justice Jackson’s impressive professional trajectory — including every senator from both sides of the aisle — focused on a single line on her resumé: her two and a half years as an appellate federal public defender during her years as a law clerk, lawyer, and judge. Based on this single line, commentators identified her with a public defender perspective. Democrats embraced Justice Jackson’s public defender experience as a counterweight to the pro-government composition of the Supreme Court. Many Republicans — spitting in the face of the constitutional rights to counsel and to be presumed innocent — vilified her for her choice to represent people accused of crimes.
Both positions miss the point. We lack meaningful professional diversity in the federal judiciary, including the Supreme Court, thanks to decades of pipelining former government and corporate lawyers from elite law schools. The celebration on one side of the aisle, and the McCarthyistic kabuki on the other, demonstrate just how deeply entrenched this pipeline is. Nominating a former public defender falls so far beyond the horizon of our collective political imagination that this very brief period during her long legal career became the focal point of the questioning that made so many of us wince, groan, and look away from the Upper Chamber’s low-brow theater.
Looking away, however, is not the answer. We must face the fact that the pipeline of pro-government and corporate lawyers to the federal judiciary does not square with the most fundamental function of the federal courts: to protect the rights of individuals and communities against government abuses. According to studies by the Cato Institute and the Brennan Center, former prosecutors dominate the bench, making up more than one-third{1} 1 Clark Neily, Cato Institute, Are a Disproportionate Number of Federal Judges Former Government Advocates? available at https://www.cato.org/study/are-disproportionate-number-federal-judges-former-government-advocates. of federal judges and 37 percent{2} 2 Janna Adelstein & Alicia Bannon, Brennan Center for Justice, State Supreme Court Diversity — April 2021 Update, available at https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-april-2021-update. of state supreme court justices. Republicans are not alone in putting their thumbs on the scales of justice. Even though just three percent of practicing lawyers are prosecutors, prosecutors accounted{3} 3 Joanna Shepherd, Jobs, Judges, and Justices: The Relationship Between Professional Diversity and Judicial Decisions (2021), available at https://demandjustice.org/report/. for 41 and 33 percent of nominees for highly powerful courts of appeal by Presidents Obama and Trump, respectively.
Let’s take one example of why this matters, and matters big, based on what is perhaps the least understood and most important aspect of our state and federal criminal legal systems today — the trial penalty. The trial penalty refers to the price — often measured in years — that an accused pays for exercising his or her right to trial. Take two years now or face 20 years after trial. Waive your right to challenge police misconduct or face a mandatory minimum sentence after trial. By coercing pleas in case after case, the brutal logic of the trial penalty has virtually erased trials from the constitutional map over the last 40 years, a fact that hardly registers for a judiciary populated by a tiny sliver of the profession — former government lawyers, prosecutors, and corporate lawyers. Given the lack of diversity on the bench, the judiciary rearranges the deck chairs while we glide across dark seas toward a zero-trial future.
Paradoxically, however, the notion that Justice Jackson can be identified with a “public defense perspective” might be both true and profoundly misleading at once. It is true in the sense that she has, as an appellate defender, lived experience with our criminal legal system in a way that prosecutors and corporate lawyers do not. It is also true, however, that appellate work attempts to reconstruct the workings at the trial level but does so in a way within substantial limitations that do not reproduce the realities of hand-to-hand trial-level combat. This is a long way of saying that we need in-the-trenches trial-level defenders on the bench and should not be cowed by the kabuki.
Equally as important, the vast majority of federal judges — and all but one sitting Supreme Court Justice — have virtually no experience at the state level where rights, freedoms, and liberties are in play every day. We celebrate Justice Jackson’s professional experience, but we must not fail to appreciate the need for real lived experience at the state level where thousands of years of liberty, family unity, and life hang in the balance. This is a long way of saying that we need in-the-trenches state trial-level defenders on the bench and should not be cowed by the kabuki.
Does that mean that we should not celebrate Justice Jackson’s nomination? Of course not. Justice Jackson is one of the most qualified judges to have been confirmed to the U.S. Supreme Court, and we must celebrate the diversity she brings, through lived experience, on many levels. Her brief service as a public defender, however, does not redress the lack of professional diversity and balance needed for our courts to police the line between government authority and government abuse at the state and federal levels. For our judicial system to work as the framers intended, defenders must be well represented throughout the system — from our nation’s lowest to highest courts — to ensure that the day-to-day operation of the criminal legal system at the state and federal levels squares with every word in the Bill of Rights and Equal Protection Clause.
An open-minded judge can, of course, perform this function but the virtual exclusion of former defenders from our judiciary works to undermine this fundamental constitutional role. If we want to resurrect the noble vision of the framers — oversight of government power by judges and juries — we must face the fact that we have systematically excluded the voices of those whose experience has the most to offer — former defenders.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California
415-298-8435
msabelli@sabellilaw.com
http://sabellilaw.com
