Since the Supreme Court decided Gideon v.Wainwright in 1963, states have been required to provide a government-paid lawyer to criminal defendants who cannot afford one, and for nearly six decades Gideon has been a celebrated part of this country’s constitutional bedrock. But last month, Justice Clarence Thomas took a narrow case about the right to appeal criminal convictions and turned it into an attack on the entire Sixth Amendment right to counsel. Thomas’ effort to undo a central criminal justice system safeguard speaks to a sad truth about our courts: Too few judges have any experience representing indigent criminal defendants, and without more public defenders on the bench, the rights of criminal defendants can never be fully secured. This is hardly a new problem but it has been exacerbated by Trump, who has yet to appoint a single public defender to the federal bench.
The parties in Garza v. Idaho, the Supreme Court case decided last month, did not question Gideon, and they did not question that defendants have the right not just to any lawyer, but one that is competent and effective. All of that was assumed. But Thomas didn’t care. His dissent, joined in full by Justice Neil Gorsuch, argued that Gideon was wrongly decided because it exceeds “the original meaning of the Sixth Amendment.” According to Thomas and Gorsuch, the Constitution does not actually provide the right to a lawyer at all; it protects only the right to hire a lawyer if you want one. In other words: The Sixth Amendment only protects the rights of rich people.
As Andrew Cohen wrote for the Brennan Center, the dissent calls for reversion to a system “that generated even more wrongful convictions than are generated now” and to a time “when indigent defendants had no hope of being fairly represented.” Thomas and Gorsuch claim that state and federal governments would fill the gap left without the constitutional right to counsel. But in the real world, even Gideon hasn’t ensured adequate resources to protect the legal rights of defendants; today, a typical public defender already has two to five times as many cases as she can reasonably handle, a crisis in our justice system that would only deepen if the views of Thomas and Gorsuch prevail.
The lawyers who best understand the importance of these sorts of basic protections, of course, are public defenders. And the Supreme Court hasn’t had a justice with significant experience representing indigent criminal defendants since Thurgood Marshall, who founded the NAACP Legal Defense Fund, retired in 1991. Two current justices—Samuel Alito and Sonia Sotomayor —worked as prosecutors. The rest have no hands-on experience with the criminal justice system, creating what Washington Post columnist Radley Balko has called a “massive blind spot” in the court’s decision-making.
This absence of experience extends beyond the Supreme Court to the entire federal judiciary. Former public defenders are woefully underrepresented on both the trial-level district courts and the circuit courts of appeal, while experience as a prosecutor remains a common and largely unquestioned career path to the federal bench.
The issue is cross-partisan and deeply systemic. Much like how the policies that created America’s mass incarceration crisis were bipartisan—with Republicans and Democrats competing to appear most tough on crime—so too has been the impulse to tap prosecutors over public defenders as federal judges. According to the advocacy group Alliance for Justice, more than 40 percent of President Barack Obama’s judicial nominees were prosecutors, outnumbering public defenders by three to one.
The problem has only worsened under President Donald Trump.
Trump’s judicial appointees lack diversity along any metric. They are 91 percent white and 76 percent male. Just one of his 91 confirmed judges is black. Still, the lack of criminal defense experience is extreme. By reviewing the Senate Judiciary Committee Questionnaires for all of Trump’s 143 confirmed or pending judicial nominees who have submitted one (a handful of recent nominees have not), I learned that not one has worked full-time as a state or federal public defender. One, Clifton Corker, a pending nominee to the U.S. District Court for the Eastern District of Tennessee, reports one year as a “volunteer” federal defender. That’s it.
By contrast, more than one-third of Trump’s nominees have worked as prosecutors, including 38.3 percent of his district court nominees and 33.3 percent of his circuit court nominees. And that’s with a narrow definition of “prosecutor” that excludes lawyers, like Gorsuch, who served in high-level executive branch positions but did not personally prosecute cases.
This one-sided approach affects both far-reaching policy questions and the day-to-day operations of the criminal justice system. Here are just a few examples of ways in which a skewed judiciary has had an outsize impact on local criminal justice systems: It is nearly impossible to sue police for civil rights violations because of the judge-made doctrine of “qualified immunity.” It is even harder to sue prosecutors. Federal judges also set policing standards that govern searches, interrogations, and the use of force. And in federal court, judges decide daily whether to detain someone before trial, sign search warrants, exclude evidence, and what sentences to impose.
Today these decisions often reflect a bias for prosecutors and aggressive policing while the lawyers who best know what’s at stake, who know how these critical decisions impact real people, are excluded.
Obama’s penchant for choosing prosecutors culminated in the nomination of Merrick Garland, a former prosecutor, over Jane Kelly, a former public defender, to the Supreme Court in 2016. Once Kelly, a judge on the 8th U.S. Circuit Court of Appeals, was reported to be a finalist, conservative groups used her public defense experience to launch a smear campaign and paint her as a threat to law and order; an especially offensive tactic given that Kelly was herself the victim of a violent assault. Yet it also betrayed an important truth: While Gideon’s promise of robust public defense is both celebrated and stigmatized, the stigma is baked into traditional notions of the ideal, critique-proof judicial nominee. Prosecutors have faced no such hurdle.
For progressives, the Trump era has ignited perhaps unprecedented interest in the courts and judicial nominations. On issues from immigration to the environment to voting rights, just to name a few, the federal courts have been the primary check on the Trump administration’s often cruel and discriminatory policies. And Trump’s nomination of Brett Kavanaugh to the Supreme Court, along with a flock of far-right and in many cases grossly incompetent nominees to the lower courts, sparked outrage that has echoed through the halls of Congress and beyond.
But what is the flip side of that outrage? What kind of judicial nominees should progressives demand? Part of the answer is obvious: more public defenders.
Indeed, a pledge to appoint at least as many public defenders as prosecutors to the federal bench is a tangible way for presidential candidates to show commitment to dismantling mass incarceration while at the same time charting a path forward for the courts. There is now real opportunity to start a new narrative around judicial selection, one that rejects the stigma attached to public defenders and the mythical neutrality of prosecutors. The right to counsel itself could depend on it.
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