Professional Diversity in Our Federal Courts - A letter to the Committee on the Judiciary
July 14, 2021
Senator Dick Durbin, Chairman
Senator Chuck Grassley, Ranking Member Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Chairman Durbin and Ranking Member Grassley:
We write to support President Biden’s efforts to increase professional diversity in our federal courts by nominating highly qualified current and former public defenders and criminal defense lawyers, and to express our concern about some senators' responses.
President Biden has recognized that public defenders and criminal defense lawyers have been systematically under-represented among federal judges. According to the Cato Institute, there arefour times as many former prosecutors as defense attorneys on our federal bench. Last year, a Center for American Progress study showed that only three circuit judges had spent the majority of their careers as public defenders. Against this stark disparity, President Biden’s judicial nominations are a critical first step toward restoring balance and legitimacy to a federal bench that does not reflect the diversity of the legal profession.
However, based on the rhetoric and questions of some Judiciary Committee members, it appears that public defenders are being singled out for extra criticism compared to lawyers with backgrounds as former prosecutors or corporate lawyers.
Ranking Member Grassley has expressed “concerns that nominees whose careers are so defined only by criminal-defense may not be up to the task of serving as a generalist judge,” while Senator Cotton has quizzed public defenders on civil procedure. In contrast, the Senate has confirmed lawyers who have spent their careers as prosecutors or working exclusively on civil litigation on a bipartisan basis and without questioning the breadth of their legal experience.
We reject any suggestion that public defenders and criminal defense lawyers are any less well-prepared for the bench than lawyers from prosecutor and civil practice backgrounds. Lawyers from varied legal backgrounds become judges and apply their legal training to matters outside their primary area of practice. Senators are wrong to imply that public defenders and criminal defense lawyers will be any less up to this task. In fact, the work that public defenders do to zealously represent their clients with relatively limited resources will prepare them well to rapidly learn new areas of law as judges.
In some cases, members of this Committee also have questioned the ability of public defenders to serve as fair-minded judges. For example, Senator Cruz has said these nominees will “naturally side with the criminal defendants” and will be “judges who will release more criminal defendants, who will impose shorter jail sentences.” Of course, these same senators routinely confirm former prosecutors and corporate lawyers without raising concerns that they will be biased in favor of the government or their former clients, respectively.
While this Committee has acted in a bipartisan fashion to begin to undo some of the worst excesses of the era of mass incarceration, some members continue to fall back on the same rhetoric that came into fashion during that period––seeming to single out public defense work as uniquely compromising.
These attacks have it precisely backwards; criminal defense is mandated by the Bill of Rights, and, in fact, representing people accused of crimes is the epitome of defending the Constitution and the rule of law without regard to personal beliefs––one of the most important skills a judge can bring to the bench. Even when it isn’t easy or their clients are unpopular, criminal defense lawyers stand for the rule of law. This is one reason many former prosecutors have joined in support of President Biden’s nominees.
Criticism of the experience and fair-mindedness of public defenders and criminal defense lawyers is especially disconcerting because we believe the federal judiciary would in fact be better served with more balance. Public defenders and defense attorneys are underrepresented compared to former prosecutors and corporate lawyers across our federal judiciary. Improving professional diversity on the bench is important for protecting the legitimacy of the court system, improving judicial decision making, and encouraging talented young lawyers to consider public interest careers. We hope senators who share our concerns will vigorously defend the legitimacy of public defense experience as a qualification for the federal bench.
Sincerely,
Black Public Defender Association
Center on the Administration of Criminal Law, NYU School of Law
Civil Rights Corps
Demand Justice
Fair and Just Prosecution
FAMM
Federal Public & Community Defenders
Gideon’s Promise
Institute to End Mass Incarceration
National Association of Criminal Defense Lawyers
National Association of Public Defense
National Juvenile Defender Center
The Sentencing Project State/Local Organizations
Alabama Criminal Defense Lawyers Association
American Civil Liberties Union of Washington State
Amistad Law Project
Arizona Capital Representation Project
Atlantic Center for Capital Representation
BPI (Business and Professional People for the Public Interest)
Civil Justice Clinic, Quinnipiac University School of Law
Colorado Criminal Defense Bar Association
Criminal & Juvenile Justice and Racial Justice Clinics, University of San Francisco School of Law
Criminal Justice Reform Clinic, Lewis & Clark Law School
Federal Criminal Justice Clinic, University of Chicago Law School
George C. Cochran Innocence Project, University of Mississippi School of Law
Georgia Association of Criminal Defense Lawyers
Justice 360
Justice Forward Virginia
Kentucky Association of Criminal Defense Lawyers
Louisiana Parole Project
Maine Association of Criminal Defense Lawyers
Maryland Criminal Defense Attorneys' Association
Maryland Office of the Public Defender
Neighborhood Defender Service
New Mexico Criminal Defense Attorney Association
New Mexico Prison & Jail Project
Office of Chief Public Defender (Connecticut)
Office of the Alternate Defense Counsel (Colorado)
Ohio Justice & Policy Center
Oklahoma Criminal Defense Lawyers Association
Oregon Criminal Defense Lawyers Association
Oregon Justice Resource Center
Pennsylvania Association of Criminal Defense Lawyers
Phillips Black, Inc.
Rhode Island Association of Criminal Defense Attorneys
Salt Lake Legal Defender Association
Texas Civil Rights Project
The Bronx Defenders
The Legal Aid Society
The Second Look Project
Uptown People's Law Center
Utah Defense Attorneys for Balanced Justice
Vermonters for Criminal Justice Reform
Washington Association of Criminal Defense Lawyers
Washington Defender Association
Wisconsin Association of Criminal Defense Lawyers