We've heard a lot lately about President Biden's nomin­a­tion of Judge Ketanji Brown Jackson as a legal mile­stone for Black women. I completely concur. But her time spent as a public defender makes this appointment another milestone for bring­ing greater diversity of life exper­i­ence to the bench.

According to the Center for American Progress, 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. Traditionally, the fastest way to the bench was through a prosecutor's office. This is true across the board, from trial judges on the state level all the way up to the U.S. Supreme Court where seven of the nine justices have some kind of prosecutorial experience. Although just 3 percent of practicing lawyers are prosecutors, they made up about 41 percent of President Barack Obama's appeals court nominees, and 33 percent of President Donald Trump's.

Today, according to the White House, 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 careers. Although the job of a public defender was cemented into the American criminal justice system more than 50 years ago, there is still 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.

While I am happy to acknowledge that Connecticut's trial bench is full of former public defenders, (more about this later) the majority of sitting federal judges came into their lifetime appointments after careers as prosecutors and corporate attorneys. Although some states had public defender's offices decades before Gideon, it was not until the 1970s that federal public defenders' offices emerged and 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. Furthermore, public defenders aiming to become federal judges faced longstanding stigmas about their work and the clients they represent. Since Gideon, there's been a common 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.

There was a time in Connecticut when to become a judge a public defender had to switch sides for a while to become a prosecutor, almost like experiencing a religious purification, before being considered for elevation to the bench. For a long time, there was a 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.

Judge Eugene Spear may have been the first public defender to be elevated directly to the state's trial bench, and I do believe that he was the first former public defender to be elevated to the Connecticut Appellate Court. As I happily acknowledge, there have been several public defender elevations to the trial bench since then. But, why does it matter? Well, we're reminded of Chief Justice John Roberts's famous description of the role of a judge as call­ing "balls and strikes." Less remembered is Sen. Herb Kohl's response that no two umpires have the same strike zone. As Kohl explained, the exper­i­ences judges bring with them to the bench inev­it­ably shape how they under­stand the contours of the law and facts in front of them.

Federal district court Judge Carlton W. Reeves put it well: "Where people come from, what they have lived through, what they do with the time they have, and who they spent that time with — it all matters." As many people calling for more public defenders, civil rights attorneys and defense attorneys on the courts, as well as increased demographic diversity, recognize, it's not just about how the courts perceive cases, it's about how people perceive the courts. When we walk into courtrooms across America, the people who stand before those courts must be able to have a sense that justice will prevail. And the push for more public defenders on the courts may also change how people view the profession of public defense itself, raising the status of public defenders within the profession and increasing recognition of the critical role they play in making our justice system work.

Turning now from the general problem to the specific appointment at hand, it goes without saying that the United States Supreme Court plays a major role in defin­ing the consti­tu­tional rights of defend­ants: from inter­ac­tions with the police, to the rights of the accused during trial, to the scope of permiss­ible punish­ments, to inter­pret­ing crim­inal laws. Every year, the Supreme Court considers thou­sands of peti­tions in crim­inal cases. And while prosec­utors are well-repres­en­ted on the Supreme Court (on the current court, Justices Samuel Alito, Sonia Soto­mayor, and Clar­ence Thomas all served as prosec­utors), the Supreme Court has never had a justice with exper­i­ence as a public defender. The last justice with substan­tial exper­i­ence navig­at­ing the crim­inal justice system on behalf of poor defend­ants was Justice Thur­good Marshall, who retired from the court more than 30 years ago.

Justice Sandra Day O'Con­nor described how import­ant Marshall's "ear of a coun­selor" was for the court — someone "who under­stood the vulner­ab­il­it­ies of the accused and estab­lished safe­guards for their protec­tion." It can be hard to see the unfair­ness baked into our crim­inal justice system from behind the bench. And not surpris­ingly, research suggests that judges with crim­inal defense exper­i­ence often approach crim­inal cases differ­ently.

Last year, after eight years as a federal trial court judge, when Jack­son appeared before the Senate for a hear­ing to be confirmed to the DC Circuit Court of Appeals, she reflec­ted on the "direct line" between her public defender exper­i­ence and her approach as a judge, includ­ing how she took "extra care" to make sure the defend­ants appear­ing before her under­stood what was happen­ing, having seen firsthand how little her clients under­stood the legal system. "I think that's really import­ant for our entire justice system."

I agree. And whether one new voice will trans­form an increas­ingly radical conser­vat­ive major­ity on the Supreme Court, just giving defend­ers a seat at the table, as well as a voice in dissent still matters. Bringing those perspectives in will help us to critically analyze the system and the way it works. It's a step towards achiev­ing courts that deliver on the prom­ise of equal justice for all, and a milestone worth celeb­rat­ing

I believe that I was the first and indeed only public defender ever appointed to the Connecticut Supreme Court. And without divulging confidences, (you'll have to wait for the tell-all book after I've left the state and the practice of law) I can safely say that when you bring judges with different professional backgrounds together, you're going to have a better discussion about cases. And even if I could not persuade my colleagues of my point of view in that moment (although history shows that in some instances my viewpoints eventually prevailed, and there's still time!), I believe that the Supreme Court ended up achieving a more thoughtful decision, after seeing all sides in a more sophisticated way, and with a better appreciation of how everyday people interact with the legal system and the public defenders who represent them have to navigate the system on their behalf.

Originally published by the Connecticut Law Tribune

Copyright © 2022 ALM Media Properties, LLC. All Rights Reserved. Originally published here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.