PLAYING DEFENSE — In his first year in office, President Joe Biden nominated 81 people to become federal judges, and 42 of them were confirmed by the Senate. They don’t look like the average federal judge: Only 31 percent of the judges confirmed under Biden are white, and only 21 percent are men, according to the American Constitution Society . Nearly 72 percent of sitting federal judges are white, and almost 65 percent of them are men. As striking as those numbers are, when Nightly asked three experts who follow the courts closely what else they have noticed about Biden’s judicial selections — a hint about what his first nominee for the Supreme Court might have on her résumé — they all pointed to the same thing: career diversity. An unprecedented number of Biden’s judges have experience as public defenders. Fourteen of Biden’s first-year judges, or about a third, have some experience as a public defender, according to an analysis from Brookings visiting fellow Russell Wheeler, who worked at the Federal Judicial Center from 1977 to 2005. Of former President Barack Obama’s 302 judges, only 14 percent, or 42, had some experience. Former President Donald Trump, who had 231 judges confirmed, appointed only 2 percent, or 4 judges, with experience as public defenders. It’s far more common to see federal judges with experience working as prosecutors. If you look at federal courts after Trump, who appointed 85 former prosecutors to the bench, only 58 federal judges had experience as public defenders, while 318 had experience as prosecutors, according to a May 2021 analysis from the Cato Institute. In other words, for every public defender on the federal bench, there are roughly five former prosecutors. The makeup of the Supreme Court reflects that trend: Of the current nine justices, only Amy Coney Barrett never represented the government before becoming a judge. And when Wheeler typed “public defender” in the Federal Judicial Center database of justice bios, his search came up empty. That doesn’t mean that no Supreme Court justice has ever done defense work. “Justices like Abe Fortas and his pro bono defense of Clarence Gideon remind us that other justices may have performed pro bono defense work in private practice,” Wheeler said. “And of course, Ruth Bader Ginsburg and Thurgood Marshall provided representation, much of it civil, to litigants in public interest litigation, as did Louis Brandeis.” Professional experience, as well as race, gender and personal history, has been shown to influence how a person interprets the law, Gbemende Johnson, a professor of government at Hamilton College, told Nightly. “It shouldn’t be seen as, ‘OK, someone has this background, so they’re going to rule this way’ in these cases,” Johnson said. “But it’s the broader idea that this set of experiences will affect their jurisprudence and the way in which they interpret certain legal issues that appear before them.” If Biden wants to nominate a public defender, that might help the cause of Judge Ketanji Brown Jackson, who is already widely reported to be a top contender for the Supreme Court seat being vacated by Stephen Breyer. Brown Jackson was an assistant federal public defender in Washington from 2005 to 2007, in addition to working as a staff member for the U.S. Sentencing Commission early in her career. “Public defenders have experiences that many other justices on the Supreme Court haven’t had. They have an understanding of the kinds of problems people encounter, particularly poor people,” said Jill Dash, who oversees the progressive American Constitution Society’s work on issues surrounding the judiciary. “It’s so important that our leaders understand the backgrounds of Americans of all walks of life.” Biden himself was briefly a public defender in Wilmington, Del., when he was 26, Wheeler noted, which could explain in part his push to nominate more former defenders. The president touted that line on his résumé during the first Democratic primary debate in 2019. “I was a public defender,” Biden said, responding to an attack from then-candidate and former prosecutor Kamala Harris. “I didn’t become a prosecutor.” Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight’s author at mward@politico.com, or on Twitter at @MyahWard.
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