Why public defenders are less likely to become judges—and why that matters

Fifty-three years ago today, the Supreme Court decided Gideon v. Wainwright, a groundbreaking case that for the first time guaranteed criminal defendants the right to an attorney, even if they couldn’t afford one.

That decision was brought about by Clarence Gideon, a poor defendant in Florida who wrote a handwritten petition to his state supreme court asking for a lawyer. The decision, which was handed down on March 18, 1963, created a new profession: the public defender, lawyers provided by the government to indigent defendants. Public defenders across the country are celebrating the anniversary on social media with the hashtag #publicdefenseday:

But as the Supreme Court nomination process over the past few weeks has made clear, public defenders still face significant challenges. As some are pointing out today, there are far fewer public defenders who get appointed to judgeships than prosecutors, a discrepancy that experts say has an impact in how cases are decided and can have a negative influence on criminal defendants.

There’s been a lot of talk about racial and gender diversity of judges—such as the fact that President Obama chose Merrick Garland, a white man, as his Supreme Court nominee. What doesn’t get as much attention is diversity in judges’ professional backgrounds. At the federal and state levels, judges and justices are much more likely to be former prosecutors than former public defenders.

Let’s start at the top. Four of the current eight U.S. Supreme Court justices have prosecutorial experience, and none were former public defenders. The last justice to have experience like that was Thurgood Marshall, who founded the NAACP Legal Defense Fund, which represented indigent criminal defendants before public defense agencies existed. Marshall retired in 1991.

While statistics for the federal judiciary as a whole don’t appear to exist, a report from the Alliance for Justice, an advocacy group, found a wide disparity among Obama nominees. As of July 2015, just 14% of Obama’s nominees for district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors.

The disparity is also present at the state level. A 2011 study found that 15% of State Supreme Court justices had experience as public defenders, compared to 33% of State Supreme Court justices who had experience as prosecutors.

“The judiciary lacks the diversity of perspective that is essential to equal justice under the law,” said Stephen Hanlon, a professor at Saint Louis University law school. “It means that you’re going to get more of the prosecution perspective than the defense perspective from judges.”

Part of the reason why public defenders are less likely to get appointed to judgeships was demonstrated in Obama’s search for a replacement for Justice Antonin Scalia. Jane Kelly, a federal appeals court judge in Iowa and a longtime public defender, was seen as one of the top contenders for the seat. According to reports last week, she was one of five judges on Obama’s shortlist.

Almost as soon as the news that she was being considered leaked, a conservative group launched a campaign ad attacking Kelly for representing a defendant charged with murder and possession of child pornography. The fact that Kelly defended someone who molested and killed a five-year-old girl made her unsuitable to be on the Supreme Court, the ad and other conservatives argued. (Kelly declined an interview request.)

“They were saying that she was somehow responsible for the conduct of her client,” said Kyle Barry, the Director of Justice Programs for the Alliance for Justice. “It’s despicable that people who have dedicated their careers to making a meaning out of the right to counsel have to endure public attacks and smear campaigns whenever they’re nominated for a judgeship.” These kind of attacks also make former public defenders less likely to seek nomination to judgeships.

Faced with Republican opposition to considering any nominee, Obama chose possibly the safest choice of all: Garland, an eminently experienced former prosecutor. Notably, in the Oklahoma City bombing case, he directed the prosecution that led to one of the only executions of a federal defendant in the last 50 years. Some observers say Garland has a more conservative record on criminal justice issues than Scalia. As an appeals court judge, he has been far more likely to side with prosecutors than defendants in criminal appeals, according to a 2010 analysis by SCOTUSblog.

The discrepancy in judicial experience isn’t just about public defenders. Lawyers who have worked at civil rights groups like the American Civil Liberties Union or public interest law organizations like the NAACP Legal Defense Fund are also underrepresented in the judiciary. Justice Ruth Bader Ginsburg, who worked for the ACLU, said in 2007 that she thought that “today, my ACLU connection would probably disqualify me” from being nominated to the Court.

Over the last seven years, Obama has made real progress in terms of improving the diversity of the federal judiciary, appointing more women, minority and openly LGBT judges than any president in history.

But in terms of professional diversity, it’s another story. Lawyers who have spent their careers fighting for poor defendants are still far less likely to become judges.

“Judges bring their life experience and professional experience, which informs their perspective, judges bring that to the bench,” Barry said. “Understanding how the law affects the more vulnerable and marginalized members of our society is incredibly important.”

Casey Tolan is a National News Reporter for Fusion based in New York City.