One Public Defender Supreme Court Justice Is Not Enough

The nomination of Ketanji Brown Jackson to the U.S. Supreme Court makes it easy to get excited about judicial diversity, and in more ways than one. If Judge Jackson is confirmed, she will not only be the first Black woman on the Court, but its first former public defender. 

This aspect of her experience has been widely discussed in the context of the perspective she’d bring to a Court that has lacked meaningful criminal defense experience since Justice Thurgood Marshall’s retirement in 1991. Equally significant, however, is the trickle-down effect her confirmation could have on the legal profession, where a career in prosecution has long been the surest path to becoming a judge. A bench with more public defenders could finally reshuffle the prestige hierarchy—and make the criminal legal system a little fairer in the process. 

Public defenders are the last safeguard against governmental overreach and Constitutional violations. Perhaps ever more importantly, however, they’re dedicated to pushing back on a legal system that too often targets and oppresses Black, brown, and low-income communities. Sworn to fight for you under the worst of circumstances, public defenders are the people you want in your corner. At their best, they listen to you when the state tries to silence you, and protect your future when the system does everything it can to take it away. 

And yet, historically, public defenders are rarely seen in positions of political power. Instead, it is prosecutors who ascend to the bench and legislature. Think about how decades of Dick Wolf shows have portrayed cops and prosecutors as avenging angels of justice, with a shabby-suit defense lawyer getting a walk-on role to say “Don’t answer that” right before the bad guy—you guessed it—spills the beans anyway. As a result, young lawyers with lofty career aspirations often end up choosing carceral rather than restorative work.

President Joe Biden has worked hard to add more defenders to the federal bench. But for the vast majority of Americans, these appointments will remain far removed from their daily lives. Most people impacted by judges don’t appear before the Supreme Court. In fact, they’re not in front of federal judges at all. Instead, they are mostly in front of state and county judges in local courtrooms. These are judges you rarely see in the media, but who have the power to shove people’s lives off-course in irreparable ways: Some 87 percent of people in prison are incarcerated on state or county charges. And they’re there courtesy of judges who hail from prosecutorial backgrounds: Only 7 percent of state Supreme Court judges come from public defense work, per the Brennan Center for Justice; close to 40 percent are former prosecutors. To add insult to injury, a public defense background often becomes fodder for keeping an otherwise-promising candidate from advancing to the bench.

The paths to power and the incentives they create in the legal community are revealing, and strikingly evident in day-to-day practice. As a public defender in both California and New York, where I spent over a decade in and out of the criminal courthouse, I encountered dozens of young prosecutors who wanted to one day ascend beyond their current role to either the bench or elected office. In essence, the lawyers who choose prosecution as a path to power are operating in a system where the available data affirms this choice: a culture of promoting prosecutors has made it a necessary precursor to judicial appointment and elected office. 

The perverse incentives created by the promotion of prosecutors have a life-altering impact on people shut out of power. Too often, success in a prosecutor’s office means racking up convictions. The implications are horrifying: To get ahead in your career, you must actively cage Black and brown people. 

Judges have the power to create accountability and fairness: to dismiss charges based on bad policing, to refuse to rubber-stamp probable cause determinations for weak warrants or flimsy felony charges, to sanction prosecutors who fail to disclose evidence or rely on false testimony, and—perhaps most importantly—to listen to people who are honest about their challenges and needs, working hard to create exit ramps out of our criminal legal system through diversion and dismissal. They can even dismiss cases just because it is unfair to bring the weight of the punishment system down on someone’s head. Usually called “dismissal in the interest of justice,” this provides judges with an extra safety valve against unjust prosecutions, and isn’t used nearly often enough.

But all too often, the judges who matter most to the vast majority of people entangled in our criminal system got there by working in a prosecutor’s office that pressured them to maximize their conviction rate. It would be naive to think they’ll suddenly break this habit once they take the bench. 

With Judge Jackson’s remarkable ascension, the legal world has a chance to recalibrate—to endorse those who rely on human-centered, public-safety oriented measures beyond our carceral system. There is no excuse for continuing to operate in a system in which, if you want to rise, first you must endorse the tributaries of mass incarceration.

I founded Partners for Justice to strengthen public defense services and address this professional pipeline problem. As client advocates, the new professionals in our program devote two years of their life to helping people walk away from the criminal system as unscathed as possible. That could mean finding a client emergency shelter, navigating medical and mental health service options, applying for aid and benefits, securing jobs and keeping families together. PFJ Advocates are brilliant people at the beginning of their careers, some of whom have been impacted by the criminal system personally, and all of whom are driven by an unshakeable desire to pull people out of its grasp. 

Years from now, it isn’t the prosecutor’s viewpoint I want on the bench. It’s theirs. But for me to look them in the eye and tell them that’s possible, there must first be a legal system that values public defenders, and acknowledges their essential role in the process of “doing justice.”