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Ketanji Brown Jackson could bring public defender background to Supreme Court

MICHEL MARTIN, HOST:

Here's another way that Judge Ketanji Brown Jackson will bring diversity to the Supreme Court - the fact that she's a former public defender. Those are lawyers who represent people who are accused of crimes but cannot afford their own representation. In fact, she is the first nominee to the high court with this background and one of only a handful to sit on the federal bench. In fact, only 7% of all active federal judges are former public defenders. That's according to the Federal Judicial Center, a research agency that keeps track of things like this. We wondered why so few public defenders go on to become federal judges, so we called Martin Sabelli. He is a former federal public defender and now trains public defenders in San Francisco. He's also the president of the board of directors of the National Association of Criminal Defense Lawyers.

Martin Sabelli, welcome. Thank you for joining us.

MARTIN SABELLI: Thank you very much for having me.

MARTIN: First, we hope that many people have heard about public defenders, but just in case, could you just tell us a little about the role of the public defender in our criminal legal system? For example, how long has it been considered a constitutional right to have access to counsel if you couldn't afford it?

SABELLI: Well, that's an interesting question. The Sixth Amendment to the Constitution guarantees the right to effective assistance of counsel. It was in the mind of the framers when they created the Bill of Rights. However, the right was formally recognized by the Supreme Court in 1963 in the very famous Gideon v. Wainwright case, in which Mr. Gideon litigated all the way up to the Supreme Court, and the Supreme Court, recognized that it just doesn't make sense. It's unfair, and it's unconstitutional and an attack on liberty, a fundamental attack on liberty, not to have a trained lawyer beside somebody accused of a crime.

MARTIN: But a 2020 study reported that people spending the majority of their careers in private practice or as federal prosecutors comprise more than 70% of the active federal appellate bench. That's in contrast to only 1% of public defense attorneys. So you know, why this imbalance? I mean, forgive me for being blunt. Is it that public defenders aren't necessarily attracted to the career path of being a judge or that they are not being considered? Or are they, in essence, discriminated against?

SABELLI: I would say all of the above. There are external factors and internal factors. You've alluded to the - one of the internal factors, that many public defenders prefer to be advocates to change a system that we believe is fundamentally unfair - specifically, systematically racist or discriminatory in terms of socioeconomic class and that sort of thing. But there are external factors as well, and I would say the external factors are more important than the internal factors. For example, I would say that there's an inertia problem. There's a pattern that people look for, the folks who are choosing judges to vet in the Senate. There's a pattern - elite law school, corporate law firm, some sort of government lawyer, prosecutor or work in some sort of government agency. So that pattern exists. If you follow that pattern, you're less likely to rock the boat. You're less likely to have a difficult Senate battle, and who wants to get involved in a difficult Senate battle?

But there's something that I would argue is a little bit deeper than that. I would call it, if I would be - and I - you know, choosing a polite word, it's a systemic bias. If I go to the other extreme, it's a kind of low-grade McCarthyism, I would say, a Willie Horton-type thing. All you got to do is label somebody soft on crime, say, you know, you've been a public defender. You've been making a, you know - you've - making our streets less safe. And that creates a political storm that makes it very difficult for somebody to get confirmed in the Senate.

MARTIN: Are you saying that public defenders are identified with their clients' alleged conduct in a way that other people are not, in a way that corporate lawyers are not necessarily identified with their clients' alleged conduct?

SABELLI: Yes. That's exactly what I'm saying. I'm saying that somebody who has elected, chosen to stand beside individuals accused of crimes is looked at by - I won't say the system because the system doesn't exist, really. It's players in the system. We are looked at as people who have chosen to be on that side, and therefore, there is something about us, something about our values, something about our relationship to constitutional values and public safety, that is different than other players in the system. So...

MARTIN: Do you have any evidence for that?

SABELLI: Sure. I mean, just last week I think it was that Nina Morrison, who is a former - wasn't a public defender, but she worked in the Innocence Project, freeing people who were proved to be innocent, had been convicted of crimes and proved to be innocent. She was raked over the coals by Senator Hawley and Senator Cruz on the theory or along the - on the argument that she had endangered public safety by, quote, unquote, "putting these people back on the street." Well, these people were innocent people. And the fact that they were convicted and proved to be innocent later means that whoever was responsible for that crime, a very awful crime in each of the cases that was talked about, is out on the street. And so it's easy for a senator like Cruz or Hawley to say, you're on the defense side. You are against public safety. The Nina Morrison example is an extreme example because that person was not a public defender. She freed innocent people through litigation, and yet she was labeled a threat to public safety.

MARTIN: Before we let you go, why should people care about whether more public defenders make it to the bench?

SABELLI: So anybody who cares about freedom should care. And the reason anyone who is exercised about freedom and liberty should care - because the framers of the Constitution created a system in which the judiciary should act as a check and a balance. And in the last four or five years, we see that our institutions, our democratic institutions, are necessary to keep us - even though we think we're safe - to keep us safe from anti-democratic movements. And the judiciary is designed to act as a check, and if that judiciary is monolithic, if it's made up principally by two slivers, former corporate lawyers and former government lawyers, we have a problem because we don't have meaningful diversity. We don't have a meaningful check on government power. So if you care about checking government power, you need to have a diversity of opinions, including people who have not spent their life allied with the government, siding with the government or not involved in these issues. So absolutely - to preserve freedom, you need diversity on the bench, and diversity on the bench means public defenders and criminal defense lawyers as well as prosecutors and corporate lawyers.

MARTIN: That's Martin Sabelli. He's a former federal public defender. He's now in private practice, and he continues to train public defenders. Martin Sabelli, thanks so much for sharing this expertise with us.

SABELLI: Thank you very much. Take care. Transcript provided by NPR, Copyright NPR.