ARCP Fifty-First Edition Preface: Marc Bookman

by Marc Bookman

Can Public Defenders Become Fair Judges, And Other Stupid Questions

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.” Footnote #1 content: Press Release, White House, President Biden Announces Intent to Nominate 11 Judicial Candidates (Mar. 30, 2021), to-nominate-11-judicial-candidates/. 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 Footnote #2 content: See Charles P. Pierce, These Public Defenders-Turned-Federal Judges Constitute Some of Joe Biden’s Finest Work, ESQUIRE (Sept. 8, 2021), appoint-public-defenders-federal-judges/. and were representing “firsts” in various districts and circuits. Footnote #3 content: 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.”). 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 attorney 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. Footnote #4 content: 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. Senator Dick Durbin, the Chairman, framed the issue thusly:

We have a debate going on in this Committee that started under the Biden administration. 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. Footnote #5 content: 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).

Continue reading the 51st Preface.