This commentary is part of The Appeal’s collection of opinion and analysis.
In 2011, my fourth year as an appellate federal defender, I suddenly became really smart. After three years of mostly losing appeals for indigent defendants in North Carolina, I participated in a case about countless people who had been wrongfully convicted of crimes or wrongfully given lengthy prison sentences. I gave the oral argument of my life, our side won an 8-to-5 en banc decision in the Fourth Circuit, and many people won their freedom. I still remember an emotional call with the mother of one of my clients as she was on her way to pick up her son from federal prison.
Of course, that’s only part of the story. The rest is about the federal courts, what ails them, and what must be done to fix them.
That 2011 case might have gone the other way, and countless people might have continued serving illegal sentences, if Barack Obama had not become President and nominated four of the judges who ruled in our favor. Sure, I did a good job. And yes, textualism, if it mattered, was on our side. These defendants had been convicted under statutory text requiring a previous conviction of a crime “punishable by imprisonment for more than one year,” yet the statutory maximum sentences for their prior convictions had been less than one year due to their low criminal histories. But the government had persuaded a three-judge panel that their specific statutory maximums didn’t matter, and without Obama’s additions the en banc Fourth Circuit might have agreed.
No intellect or doctrine can overcome a judiciary inclined to favor government and the powerful against the accused and the vulnerable. And that is the federal judiciary we now have.
According to a recent study by the Center for American Progress, no sitting federal appellate judge spent most of their career with a nonprofit civil rights organization. Only about one percent spent most of their careers as public defenders or in a legal aid setting. Instead, the vast majority—more than 70 percent—worked primarily in private practice or as federal prosecutors.
The Supreme Court is worse. The late Justice Ruth Bader Ginsburg, the first director of the ACLU Women’s Rights Project, was the sole member of the Court who had dedicated a substantial portion of their career to representing clients at a nonprofit organization. There are no Supreme Court justices with meaningful experience representing people accused of crimes, or facing eviction, or battling racism, or seeking health care.
True, some former prosecutors and corporate lawyers make excellent judges. But a person’s life and professional experiences inevitably influence their perspective; where one judge sees a criminal suspect, an illegal border-crosser, or a deadbeat tenant, another judge might see a victim of racial profiling, an asylum seeker, or someone trying to survive after losing their job. And on balance, the institution that interprets federal law is tilted toward one set of perspectives.
With predictable results. The Supreme Court has invented doctrines, including qualified immunity, that have fueled racist policing and needless police violence. It has shielded prosecutors from liability for withholding exculpatory evidence. It struck down Section 5 of the Voting Rights Act based on the incorrect claim that it was no longer needed, thus hastening a new voter suppression era. It sanctioned President Donald Trump’s travel ban despite overwhelming evidence that it was steeped with anti-Muslim animus. America is more racist, more violent, and less democratic because of these decisions, and because of who was empowered to make them.
Donald Trump, a bigot, is exacerbating this problem. None of his 53 appellate judicial nominees have been Black. To my knowledge none of them have spent the majority of their careers at nonprofits or civil rights organizations. This includes Trump’s nomination of Judge Amy Coney Barrett, a conservative white law professor and former corporate lawyer, to fill Justice Ginsburg’s seat.
It does not help that the process that has allowed Trump to make these nominations, and exacerbate the judiciary’s imbalance, was never approved by a majority of the American people. A minority of voters gave Republicans control of the Senate, and they used that control to block many of President Obama’s nominees, from the nomination of Judge Merrick Garland to the Supreme Court, to the nomination of Myra Selby, a Black woman, to a federal appeals court. Who sits in that seat now? Why it’s Judge Amy Coney Barrett.
I’m sorry, but to call this system fair is a joke. Judges have very difficult jobs, and I sincerely believe they try their best in every case. Their good-faith efforts deserve our respect. But I also have clients, and it would disrespect them to say their cases can or will be decided by “the law,” rather than by the ridiculously imbalanced set of human beings empowered to interpret it.
It’s therefore hilarious when people argue, as some are now doing in support of Judge Barrett’s nomination, that we should choose justices based on their “brilliance.” What ails the Supreme Court is not a lack of brilliance but a lack of judgment. The most significant decisions at that court are basically applied sociology, performed badly, by people with a narrow range of experiences. And besides, as I learned when I suddenly became a smart federal defender, which lawyers are perceived as “brilliant,” and therefore identified as potential future judges, can depend on the identities of the current judges who heard their cases.
For similar reasons, I’m not interested in debating which political party started the ongoing judicial nomination wars. Either way, there is crisis-level unfairness in the federal judiciary, and no lawful tools should be off the table to address it. Not term limits. Not increasing the number of judges. Nothing.
Without these tools, the next several decades will offer little hope of mitigating decades of unfair precedent and building a federal judiciary that is capable of delivering fairness and justice to people who have business in federal court. Judge Barrett seems headed for confirmation to the Supreme Court. Unless something changes, Judge Barrett and other right-wing judges figure to control the law indefinitely.
Of course, it’s unclear whether Joe Biden will win the election or who he will nominate if he does. And it’s unknown whether Senate Democrats will ever regain power, let alone whether they would wield it to add justices in order to loosen the right-wing’s grip on the Supreme Court. But that is what’s necessary. Otherwise lawyers like me are going to find that we are no longer considered “brilliant,” and our clients are going to find that they no longer have rights.
So, to paraphrase the late Justice Ginsburg, if you ask me when there will be enough former lawyers for the accused and the vulnerable on the Supreme Court, my answer is: when there are eighteen.
Matthew Segal is legal director of the ACLU of Massachusetts; the views expressed are his own.