Preface

• Pages: 1-12

PREFACE

CAN PUBLIC DEFENDERS BECOME FAIR JUDGES,AND OTHER

STUPID QUESTIONS

Marc Bookman*

When asked to write this Preface, I immediately began scrambling for a topic.

Fortunately, the Senate Judiciary Committee was in session, so there was no dearth

of material. Apparently, some of the members had taken issue with President Biden’s

“deeply-held conviction that the federal bench should ref‌lect the full diversity of

the American people–both in background and in professional experience.”

1

The

President had wasted little time fulf‌illing his commitment, nominating a series of

highly qualif‌ied people of color, many of whom had served as public defenders in the

past

2

and were representing “f‌irsts”in various districts and circuits.

3

As a capstone,

he had named Judge Ketanji Brown Jackson, the f‌irst Black female and f‌irst with a

history as a public defender, to f‌ill the vacancy on the United States Supreme Court

left by the retirement of Associate Justice Stephen Breyer. These nominations created

controversy on the Committee, and on the morning of March 2, 2022, the target of

that controversy was Arianna Freeman, a Yale Law School graduate and longtime at-

torney with the Federal Community Defender Off‌ice in Philadelphia. Freeman had

been nominated as the f‌irst woman of color to serve on the Third Circuit Court of

Appeals.

4

Senator Dick Durbin, the Chairman, framed the issue thusly:

We have a debate going on in this Committee that started under the Biden adminis-

tration. I can’t recall, having been here a few years, that we had it before. And it’s a

question of whether or not we should have people who were public defenders serve

on our federal bench, either at the appellate level or at the trial level ...I’d like you

to comment, if you can, if you bring any particular bias to the role of circuit court

judge based on your previous professional experience.

5

Over the course of the morning, the debate over Ms. Freeman’s ability to be a neu-

tral judge—after having spent her career defending those accused of crime, and spe-

cif‌ically those facing execution—was brought into sharp focus by three Republicans

on the Committee, all of them lawyers. The question: could a public defender, and

* Marc Bookman is the Executive Director of the Atlantic Center for Capital Representation (Atlanticcenter.

org), a non-prof‌it based in Philadelphia. He is the author of A Descending Spiral: Exposing the Death Penalty

in 12 Essays, published in May 2021 by the New Press. ©2022, Marc Bookman.

1. Press Release, White House, President Biden Announces Intent to Nominate 11 Judicial Candidates (Mar. 30,

2021), https://www.whitehouse.gov/brief‌ing-room/statements-releases/2021/03/30/president-biden-announces-intent-

to-nominate-11-judicial-candidates/ .

2. See Charles P. Pierce, These Public Defenders-Turned-Federal Judges Constitute Some of Joe Biden’s

Finest Work,ESQUIRE (Sept. 8, 2021), https://www.esquire.com/news-politics/politics/a37517657/joe-biden-

appoint-public-defenders-federal-judges/.

3. See supra note 1 (“This group also includes groundbreaking nominees, including three African American

women chosen for Circuit Court vacancies, as well as candidates who, if conf‌irmed, would be the f‌irst Muslim

American federal judge in U.S. history, the f‌irst AAPI woman to ever serve on the U.S. District Court for the

District of D.C., and the f‌irst woman of color to ever serve as a federal judge for the District of Maryland.”).

4. As of the time of publication, Arianna Freeman’s nomination, deadlocked after a Judiciary Committee

vote, was voted out of the committee 50–48 in a party-line vote on June 22, 2022. She has not yet proceeded to

the full Senate for a vote on her nomination.

5. Conf‌irmation Hearing on Federal Judicial Nominee Arianna Freeman Before the United States Senate

Committee on the Judiciary, 117th Cong. (Mar. 2, 2022) (statement of Dick Durbin, Chairman, Senate

Judiciary Committee).

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022) i