As President-elect Joe Biden prepares to take office in just over a month, police reform advocates say that he needs to look beyond prosecutors to fill open spots on the federal bench if there’s to be any hope of implementing changes to hold law enforcement officers accountable.
Racial and gender diversity was already a critical issue for Biden’s judicial picks, especially following an administration whose choices for federal judges, as well as top federal prosecutors, were overwhelmingly white and male. But reformers say career diversity should also be a factor in Biden’s selections. They’d like to see more nominees with a professional background in areas like public defense and civil rights.
Biden, like Vice President-elect Kamala Harris, brings a controversial record on criminal justice to the Oval Office. He may have started out as a public defender, but he is much more closely associated with the 1994 crime bill that helped build a ramp to mass incarceration in America. Harris has more recently labeled herself a “progressive prosecutor,” but her record on criminal justice in California was decidedly mixed and subtly shifted only after the 2014 Ferguson unrest, which laid the groundwork for a more general shift in American views on criminal justice.
Judges often come from prosecutorial backgrounds, where they worked closely with police. A new report, from University of Texas law professor Jennifer Laurin and Justice Collaborative Institute research director Kyle Barry, argues that having the bench full of jurists “with narrow professional backgrounds [has] infused the law with a one-sided and often false view of policing, favoring police power over civil liberties.”
“How can federal courts make better-informed decisions? Decisions that consider not just the interests of police, but the often brutal reality of the people subject to their control? One (albeit incomplete) solution is both straightforward and popular: Diversify the lived experiences of those sitting on the federal bench, including by appointing more public defenders and civil rights lawyers ― legal professionals who have made a career of challenging rather than defending the police perspective,” the report says.
A poll from Data for Progress and the Justice Collaborative Institute found that 58% of voters support “appointing judges who have experience as criminal defense attorneys and civil rights lawyers, not just former prosecutors.” Nearly half of Republicans, 49%, favor the same broader professional diversity.
Last month, civil rights and other groups called for Biden’s judicial nominees to include “public interest lawyers, civil rights lawyers, labor lawyers, plaintiffs’ lawyers, and public defenders.” Earlier this month, in Biden’s meeting with civil rights groups, one prominent civil rights leader pushed him to think about “background diversity” that would bring new perspectives to the federal judiciary and reminded the president-elect of his own background in public defense.
“Our judiciary has essentially been taken over by former prosecutors,” Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund, said to reporters after the meeting. “We need balance in the appointments to the bench.”
Alec Karakatsanis of Civil Rights Corps, which has filed lawsuits alleging unconstitutional systems of incarceration across the country, told HuffPost that for the last generation, judges have “presided over the largest and most racially disproportionate expansion of human caging in modern world history” and that the lack of racial and background diversity on the bench was a major contributor.
“During this time, the U.S. judiciary has been disproportionately white, disproportionately male, and disproportionately wealthy. But it has also been full of prosecutors who, before they became judges, devoted their careers to working with police to build the punishment bureaucracy,” Karakatsanis said.
“In every fiber of their being, these former prosecutors have become desensitized to the everyday brutality of putting metal chains on people’s bodies, separating families, and putting human beings in filthy cages,” Karakatsanis said. “Their hard work to put as many people as possible in jail with no evidence that it made anyone safer carried over to their work as judges for years.”
Bill Nettles, who served as South Carolina’s U.S. attorney during the Obama administration, had a pretty unusual background for one of the nation’s top federal prosecutors: He was a public defender and criminal defense attorney. Nettles told HuffPost that a law enforcement or prosecution background shouldn’t hinder anyone from becoming a judge, but that a range of voices within the judiciary is important for purposes of judicial legitimacy. A basic premise of jurisprudence within a democracy, he said, is that the decisions of the judiciary only have the authority that the people give them over time.
“The voice of the people has come very loud that they want some reform,” Nettles said. “If you have a judiciary that is primarily comprised of people with a prosecution background, then in a time where the community is calling for reform, the decisions will be given more authority by the people if the judiciary has among it people that come from a different point of view,” he said.
Biden, as BuzzFeed News reported this week, will face an uphill battle to confirm judicial nominees. Over the past four years, Senate Majority Leader Mitch McConnell (R-Ky.) has focused on filling the bench with Trump’s judicial picks; before that, he regularly impeded President Barack Obama’s nominees. In 2021, Democrats will at best hold an extremely narrow majority in the Senate (depending on the outcome of the Georgia runoff elections next month). At worst for Biden’s picks, McConnell will remain in control. And nominees for legal jobs who have non-prosecutorial backgrounds have previously run into problems in the Senate confirmation process.
Look no further than the experience of Debo Adegbile, Obama’s nominee to head the Justice Department’s Civil Rights Division, who was attacked over his involvement in a controversial death penalty case while at the Legal Defense Fund. The treatment of Adegbile in the Senate was especially stark: The Black nominee was pilloried for defending a death row inmate, even though the sitting chief justice of the Supreme Court, a Republican nominee, had himself represented a mass murderer.
Jamal Brown, a spokesman for the Biden transition, said that the president-elect had “proudly championed the historic confirmations of Justices Ginsburg, Sotomayor, and Kagan, and reshaped the Senate Judiciary Committee to reflect the diversity and breadth of America. As president, he will nominate the first Black woman to the Supreme Court, and appoint judges who share his commitment to the rule of law, and upholding individual civil rights and civil liberties.”
To uphold individual civil rights and liberties, the Justice Collaborative Institute’s report effectively argues, a wider range of professional backgrounds is needed. State-sponsored violence against Black Americans has been the product of a judiciary that has failed to hold police accountable, it says, and that is driven by a “false narrative” of policing that doesn’t value the lives of Black Americans.
“The vision of American policing reflected in the Supreme Court’s criminal procedure jurisprudence — a vision of expert crime-fighters under siege and deserving of judicial deference — is neither empirically grounded nor inevitable. It is a construct,” the report states. “And it should come as no surprise that a bench whose professional life has been overwhelmingly dedicated to defending, rather than contesting, the judgments of police would create such a construct. Diversifying the federal bench with lawyers that have insight into the perspectives of those who are the targets of law enforcement action is an important, and politically viable, corrective.”