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Judge Sotomayor's nomination to the Supreme Court has instigated a lot of conversation about the demographics of judicial nominees - males versus females, Hispanics versus non-Hispanics, Protestants versus Catholics.  However, I think that it should inspire a conversation about the serious bias that exists in judical appointments, both locally and nationally, which has had a devastating impact on the quality of justice over the last 20 to 30 years.

That bias is the fact that criminal defense attorneys don't get nominated to the bench.

Okay, a handful do get judgeships.  However, the number that do, compared to the number of ex-prosecutors, and corporate lawyers who are nominated to the bench, is woefully small.  Of the current Supreme Court justices, three have worked with the Federal Attorney General's Office and two with state Attorneys General.  None have any criminal defense experience.  Judge Sotomayor, with her prior work at the New York District Attorney's Office should fit right in.  Here in California, six of our seven Supreme Court justices are former prosecutors.  In my own Orange County, there hasn't been a judge who went directly from the public defender's office to the bench since the 80s.  It won't surprise you to learn that, in contrast, deputy district attorneys are both elected and appointed to the bench several times a year, every year.

Life experience matters in a judicial appointment, regardless of the yapping of the right-wing that such a concept is antithetical to the law.  Very often, a judge is called upon to weigh competing values, such as the right of an individual to remain free from unreasonable search and seizure against the right of the state to enforce its laws.  How those values are weighed cannot help but be, on some level, a product of the development and experiences of the judge doing the weighing.  When that judge has had no experience with poor people, or people of color, his assessment of competing values in a case involving such people has less of a chance of being reality-based than if he had such experience.  The same is true of a judge who has had no experience with people who have been confronted by police interrogation tactics, or who have had their houses torn apart in police searches, or who have been accused of a crime.

Thus, the result of having a bench with no one having experience defending alleged criminals is a trend toward interpreting the Constitution in favor of the State rather than the individuals it was written to protect.  It has been noted by more than one commentator that Judge Sotomayor's experience as a prosecutor has had an impact on her treatment of criminal justice issues.  Although the United States Supreme Court has certainly rendered opinions that were favorable to the defendant (e.g.
Crawford v. Washington, enforcing the Confrontation Clause against the increasing number of state laws allowing hearsay evidence in criminal trials, and Wiggins v. Smith, a breakthrough case defining the duties of defense counsel in capital cases), the unmistakable trend of the last 20 to 30 years of its jurisprudence has been the diminution of constitutional rights in the context of criminal law.  Thus, over time, the Fourth Amendment right against unreasonable search and seizure, Fifth Amendment right against self-incrimination (and the landmark Miranda v. Arizona case), and Sixth Amendment right to counsel have all been slowly but surely eroded by Supreme Court decisions.

The California Supreme Court has followed suit.  Its approximately 97% affirmance rate for capital case appeals is only the tip of the iceberg.  Granted, California voters have done their best to eviscerate constitutional protections for those suspected or formally accused of a crime, so it is hard to put all of the blame into the court's lap.  However, California's decisional law has inexorably increased the powers of the police and the prosecution, and decreased those of the citizen accused, over the past 30 or so years.

The Supreme Court has, in recent days, recognized the probability of judicial bias when a judge hears the case of a large contributor.  I would hope that President Obama, in making future appointments, recognizes that there is an equal chance of bias when criminal defendants are making their pleas in front of benches composed only of civil lawyers and prosecutors.  Criminal defense attorneys have a unique perspective on the impact of governmental action on citizens who are suspected or accused of a crime, on the efficacy of various penal alternatives, on the causes of criminal behavior, and on the appropriate balance between the interests of the State and the interests of the citizen in the criminal justice arena.  That perspective needs to be represented on the bench, on both the state and Federal level.  Until that happens, we do not have a representative judiciary.

Originally posted to Daily Kos on Sat Jun 13, 2009 at 11:09 PM PDT.

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