Gov. Gavin Newsom should appoint a public defender to the California Supreme Court

As Gov. Gavin Newsom debates his choice to replace departing Justice Mariano-Florentino Cuéllar on the California Supreme Court, he should take his commitment to draw “from a broad, experienced pool of candidates that reflects all aspects of the state’s diversity” to heart and appoint a current or former public defender to the bench.

While the California Supreme Court is a model of diversity in many respects, professional diversity is not one of them. While more than half (four) of the justices have experience as prosecutors or assistant attorneys general, none have served as public defenders.

Why does that matter? Judging is not simply a dry intellectual exercise. Legal questions are necessarily surrounded by facts that require interpretation and analysis. Resolution often depends on a holistic understanding of the many forces at play in a case, the circumstances facing the parties and the dynamics of their relationships.

When discussing gender, racial and ethnic diversity on the bench, U.S. Supreme Court Justice Sonia Sotomayor once noted, “Personal experiences affect the facts that judges choose to see.” Professional experiences are not different.

Public defenders and prosecutors may work in the same courtrooms, but what they observe, learn and confront in their jobs is vastly different. This is not to say that public defenders who become judges come to the bench with an agenda or a predetermined approach to how they would rule. But particularly in a group deliberative setting like the California Supreme Court, adding justices with these unique work experiences and values will inevitably produce more complete, better-reasoned decisions.

Public defenders know the realities of how laws work in practice and how they affect individuals. Defenders know not only how the rules and restrictions affecting their clients are intended to work but also how they do in fact operate in practice. They see the obstacles people must navigate to find work and housing, obtain health care and provide for their children. They know how involvement in the criminal legal system restricts all of their options, often rendering basic sustenance activities nearly impossible. These facts influence the administration of justice as much if not more than anything that occurs in the courtroom.

Public defenders are also more likely to identify and question government overreach, particularly when it infringes on individual liberty. They bring devotion to our Constitution and a demonstrated commitment to defending it for everyone.

For example, prohibiting a probationer from associating with others convicted of felonies or on supervision may seem like a minor, reasonable restriction to some. But a public defender might see that for many, it threatens relationships, bars people returning to the community from living with family or seeing childhood friends, and can cause not only social isolation but also extreme financial hardship and even homelessness. Public defenders have witnessed how the sum of many seemingly minor restrictions can produce heavy burdens, and they profoundly embrace and experience the humanity of their clients.

These experiences lead public defenders to “choose to see” facts differently. President Joe Biden has committed to appointing public defenders to the federal bench, and one-third of the individuals he has nominated so far have public defender experience. Among the most notable are his appointments to the Circuit Courts of Appeals: Eunice Lee, Veronica Rossman and Candace Jackson-Akiwumi have served as public defenders for a decade or more, and Ketanji Brown Jackson and Gustavo Gelpi worked in that capacity during their careers. With these five alone, Biden has doubled the number of former public defenders on these powerful courts.

Newsom should follow Biden’s lead. He must not pass up this critical opportunity to expand the diversity and quality of our state’s highest court.