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Public Defender Bench Aspirations Emboldened by Biden Nominees

Aug. 16, 2021, 9:45 AM

Armilla Staley-Ngomo aspired to be a federal judge since she’d clerked for the first Black woman judge in the U.S. Central District of California, Consuelo Marshall.

But Staley-Ngomo thought her work as a federal public defender would impede her path to the bench. She represents immigrant communities in Southern California.

This year, however, she applied to be a federal trial court judge, a decision she says was inspired by the way the Biden administration has called “for attorneys like me that have not been historically appointed to the bench.”

President Joe Biden’s nomination of several public defenders is part of a broader effort to add professional and demographic diversity to the judiciary. It’s convincing a new crop of aspiring judges like Staley-Ngomo.

Many federal public defenders who’d felt shut out from the bench now see their skills getting overdue recognition by the political establishment. Biden’s nominations also may convince law students that “they’re not closing that door to being a judge just because they might pursue their public defender aspirations,” said Rachel Barkow, a New York University law professor.

A New Hope

Several federal public defenders interviewed by Bloomberg Law say they took Biden’s presidential transition promise to nominate more public defenders as a signal that now might be the right time to apply for a federal judgeship.

Candis Mitchell, chief assistant federal public defender in the Northern District of California which covers the Bay Area, says this is the first time she and many of her colleagues nationwide have been courted by judicial nomination commissions convened by senators. The commissions interview candidates, whom senators recommend to the White House, and the president chooses nominees from this pool.

Mitchell didn’t advance far in the process, but she credits her willingness to apply to the current administration’s rhetoric.

“There’s no way I would have even slightly had an interest,” she said. “But with Biden being as clear as he was about his interest in us, getting nominated moves from being purely hypothetical to something you can actually do.”

Persistent Skepticism

Twelve of Biden’s 33 nominees so far for lifetime federal judicial appointments have public defender experience, and a handful of them have been confirmed. They include Ketanji Brown Jackson, a former D.C. federal trial court judge and federal public defender, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. Candace Jackson-Akiwumi, a former federal public defender in northern Illinois, was confirmed to the Chicago-based Seventh Circuit.

Republican senators have questioned whether public defenders have enough experience in complex civil litigation or can be impartial in cases involving criminal defendants, which progressive activists say is a double standard not applied to judicial nominations with experience as prosecutors.

Amid the White House’s interest, Barkow said tougher confirmation hearings may not be enough to deter public defenders: “This is a tough group of people used to fighting uphill battles,” she said.

Inspiring New Generations

Biden’s nominees may open up new career trajectories for law students who didn’t view becoming a public defender as a pathway to the federal bench. Mitchell recounts that during law school, students were implicitly and explicitly taught to see a prosecutor or Big Law career as a prerequisite for a federal judgeship.

“These are the kind of choices that young people have to make in order to chart a course for their career,” said Lisa Freeland, the head federal public defender for the Western District of Pennsylvania, which includes Pittsburgh. “But the recent nominations show you that it’s possible or that you won’t be overlooked simply because you thought public defense might be a disqualifying factor.”

Mitchell said she’d had no mentors with her professional experience who’d reached the federal judiciary, another obstacle to navigating the nomination process.

Barkow says that could change as judges who were public defenders expand networking opportunities for career advice and clerkships.

“This will be really appealing to a group of students that in the past may have not been as excited about a bench that was dominated by former prosecutors,” she said.

Because federal public defenders are more diverse than lawyers in other legal professions, “pulling from a group of people with that professional experience I think we’ll see greater diversity in the federal judiciary in general,” Barkow said.

Awaiting Word

Staley-Ngomo is waiting next steps in the nomination process after interviewing in March with the judicial nomination commission set up by Sen. Dianne Feinstein (D-Calif.)

“I’m in no rush because I get to keep being a public defender and I continue to learn more about my district and have this rewarding career,” said Staley-Ngomo, who has roughly seven years experience as a federal public defender in Los Angeles and San Diego. She also has worked as a litigation associate at two law firms in California.

Several federal public defenders interviewed by Bloomberg Law cite personal fulfillment with their jobs, along with the perceived improbability of their nomination, as reasons not to pursue a federal judgeship. To them, the prestigious defense attorney role is the height of their professional careers.

Other federal public defenders, such as Byron Conway, an assistant federal public defender in Atlanta, said their ability to affect change in the legal system may be hampered by the mandatory sentencing guidelines to which federal judges must adhere.

“Many of us would rather not put ourselves in the position to have to put a mother in jail, who’s going to lose her kids, her home, and her job simply because the sentencing guidelines requires us to do so,” Conway said.

To federal public defenders interested in becoming judges, however, now is the moment to pursue the bench.

“This is the first administration to focus on professional diversity in a way others haven’t,” Staley-Ngomo said. “We could very well have another president who would no longer value that—you never know how the pendulum will swing in politics.”

To contact the reporter on this story: Tiana Headley at theadley@bloombergindustry.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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