Abbe David Lowell is co-chair of Winston & Strawn’s criminal defense practice group and co-chairs the National Association of Criminal Defense Lawyers programs. He teaches criminal law at Columbia Law School and Georgetown Law Center. The opinions expressed here are his own.
As names of possible replacements for retiring Justice Stephen G. Breyer are being floated, attention should be paid to more than Joe Biden’s pledge to appoint a Black woman to the Supreme Court. Biden has been rebalancing the lower federal courts with more people who worked as criminal defense lawyers. His high-court pick should have the same background.
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Most Supreme Court nominees have been appellate judges, many with little or no actual trial experience — civil or criminal. If they had any criminal trial experience, they were prosecutors. Six of today’s nine justices have prosecutorial backgrounds, and none was a criminal defense attorney. The last justice with deep defense experience was Thurgood Marshall, who was also a civil rights attorney. He was nominated 45 years ago and left the court in 1991.
Why does it matter? The Bill of Rights protects the rights of individuals in the criminal justice system — governing searches and seizures, self-incrimination, effective assistance of counsel, impartial juries, burdens of proof, and cruel and unusual punishments. Several landmark decisions — including Mapp v. Ohio (searches), Gideon v. Wainwright (counsel), Brady v. Maryland (discovery) and Miranda v. Arizona (confessions) — addressing these fundamental rights were decided 50 years ago. In the half-century since, the rights established in these decisions keep being narrowed, qualified and, in some cases, practically eliminated. A person now must affirmatively state that he or she wants to invoke the right not to speak; the rule that excludes improperly obtained evidence has been trimmed to near extinction; the right to get an attorney exists in fewer proceedings; and prosecutors often use Brady’s requirement to provide exculpatory material as a road map for what not to disclose. What looks “exculpatory” to a prosecutor (who believes the evidence of guilt is overwhelming anyway) can be markedly different to a defense attorney (whose job is to assemble a defense).
Not surprisingly, studies have correlated the cutback on criminal justice protections to a justice’s own role in the system. In 2005, law professor Ward Farnsworth pointed out that in the years each served on the court, then-Chief Justice William H. Rehnquist, a former prosecutor and Justice Department official, voted for the prosecution in more than 95 percent of constitutional criminal cases, while Marshall did so less than 10 percent of the time. When an issue comes before any judge, interpretation will be influenced by that person’s career experiences; a judge who has spent significant time seeking convictions sees the world differently than one who has represented those charged. The former might view a challenge to a search that yielded inculpatory evidence as something that impedes law enforcement; the latter might see it as one of the Constitution’s most important checks on government power. The attorney whose job is to provide effective assistance understands on a minute-by-minute basis what that job involves; a prosecutor with the resources of police, the FBI or other agencies sees that challenge differently. And a justice who was a prosecutor will bring that experience to cases.
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Why is there such an imbalance in the backgrounds of Supreme Court justices? In divided times, with fights over judges at every level, presidents have not taken chances. They look for people who satisfy the checklist: prestigious and high-ranking law schools, work at well-known law firms, tenure in a U.S. attorney’s or district attorney’s office and then appointment to some federal or state appellate position. They have tended to avoid people who have been involved in controversial cases or taken controversial positions — work at the core of representing people accused of serious white-collar or street crimes. The result is today’s prosecutorial imbalance.
To replace Justice Antonin Scalia in 2016, President Barack Obama considered federal appellate Judge Jane L. Kelly, a former public defender with an impeccable record. But, perhaps imagining how Republicans in the Senate might have treated a nominee who “helped turn loose murderers and rapists,” Obama nominated Merrick Garland, a former prosecutor and appellate judge he thought a safer pick. And as we all know, his nominee was still thwarted by Republican obstruction.
Of the names under discussion today, D.C. federal Judge Ketanji Brown Jackson was a public defender, and California Supreme Court Justice Leondra Kruger worked in law firms representing criminal defendants. Other qualified people — judges and non-judges — share this credential as well.
A single justice with real criminal defense experience might not make a numerical difference in many cases, but their presence would ensure that all perspectives in addressing fundamental rights are considered. Diversity goals seek to make certain that all aspects of issues are considered, but diversity is about more than race, ethnicity, gender and sexual orientation. For the nine-person institution that declares what is right and wrong in our criminal justice system, Biden should appoint someone who knows criminal defense.