Governor Newsom Adds Another Prosecutor to the California Supreme Court

The state has not had a justice with experience as a public defender since the mid-1980s.

Kyle C. Barry   |    October 9, 2020

(Newsom’s Public Page/Facebook)

This article originally appeared on The Appeal, which hosted The Political Report project.

The state has not had a justice with experience as a public defender since the mid-1980s.

This is the latest in our series spotlighting state Supreme Courts.

With his first appointment to the state supreme court, announced Monday, California Governor Gavin Newsom has added yet another former prosecutor to the bench. Presented with an opportunity to break with a persistent convention of “tough on crime” politics, which has sidelined lawyers with experience defending people and distorted the country’s jurisprudence on criminal justice, Newsom reinforced it instead.

Martin Jenkins, a former prosecutor and retired judge who is now Newsom’s chief legal adviser, will fill the vacancy left by the retirement of Ming Chin, a former prosecutor himself. His appointment means there will again be three former prosecutors on a seven-justice court that hasn’t had a former public defender in 34 years. 

In other ways, appointing Jenkins is a historic milestone for diversity. Jenkins will be only the third Black man, and the first openly gay justice, to ever serve on the court. He also breaks the typical mold of judges who have an elite upbringing and Ivy League credentials, which will bring a broader perspective to the law. Jenkins grew up helping his father clean office buildings for extra money and then went to college nearby at Santa Clara University, followed by law school at the University of San Francisco. 

Here Newsom’s pick contrasts sharply with the way Trump has loaded the federal bench with white men who come pre-approved by rightwing interest groups. Not one of Trump’s 53 appointees to the federal courts of appeals is Black, and a third of them, according to an analysis by Lambda Legal, have a demonstrated “history of anti-LGBTQ bias.” 

But a lopsided share of Trump’s appointments have also gone to former prosecutors—a trend that predates the current president and that Newsom continued this week.

Across the country, state and federal courts are run mostly by judges who spent their legal careers representing the powerful and wealthy, either as prosecutors, who as a profession are the engine of systemic mass incarceration that disproportionately harms poor and Black communities, or as Big Law firm partners, representing massive corporations. Lawyers on the other side—the public defenders, civil rights advocates, and legal aid lawyers fighting for the rights of ordinary people—are largely absent from the bench. Their clients most depend on the courts to provide equal justice without regard to wealth, or status, or political clout, and yet their perspectives are generally missing from the institutional function on which that justice depends. 

It’s unsurprising, then, that courts often defer to law enforcement while eroding the rights of people charged with crimes and allowing racism in the criminal legal system to flourish. Thanks to the court-made doctrine of qualified immunity, for example, it’s nearly impossible to sue police, and it’s even harder to sue prosecutors. And dubious factual assumptions that favor police are baked into many of the constitutional rules that regulate police power, as a law review article by former police officer and law professor Seth Stoughton lays out. 

In California, the state supreme court rarely intervenes to curb racism in jury selection, a recent report from the Berkeley Law School death penalty clinic found, despite documented patterns of state prosecutors striking jurors for reasons that track closely with race, like living in a predominantly Black neighborhood or having been the victim of racial profiling. Just this year, the court upheld a death sentence from the late 1990s after prosecutors struck Black jurors who said they were not troubled by the O.J. Simpson verdict. Only Justice Goodwin Liu dissented.

Many politicians now profess to understand that our criminal legal system is a bloated and destructive policy failure—Newsom himself signed into law several important reforms last month, including one that restricts prosecutors’ power to strike Black jurors—but they are contributing to the structural problem as long as they let the job of prosecutor remain among the surest paths to the bench.  

Measured by race, ethnicity, gender, or sexual orientation, President Obama had the most diverse judicial nominees of any president in history. Yet among his appointments, prosecutors outnumbered public defenders by more than three to one. In June, when New Jersey Governor Phil Murphy appointed the first Black woman to sit on the state’s highest court, he chose a federal prosecutor. Now five of the New Jersey Supreme Court’s seven justices are former prosecutors, and not one is a public defender. 

It’s not that prosecutors are uniformly bad judges or that they all bring a tough-on-crime approach to the cases they decide. U.S. Supreme Court Justice Sonia Sotomayor is a former prosecutor, and she has been the most progressive member of the Supreme Court on criminal justice issues, by far, in decades. Jenkins may well follow her example. 

But institutional diversity matters as well. The professional experiences and personal backgrounds of judges inevitably influence how legal issues are resolved, especially on appellate courts, like state supreme courts, where judges deliberate and issue decisions together. Justice Thurgood Marshall was the last U.S. Supreme Court justice with real experience defending people charged with crimes. Before joining the Court, he spent decades defending Black people in race-based prosecutions and assailing the death penalty. After he retired in 1991, Justice Sandra Day O’Connor recalled that Marshall’s experience standing shoulder-to-shoulder with people who faced the enormous pressure of prosecution, who had been stopped and searched and beaten by police, had influenced the Court. “His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection,” O’Connor said. “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences.”

Yet this sort of experience is now lost. The California Supreme Court hasn’t had a public defender since Chief Justice Rose Bird left in 1986. During her 10 years on the court, Bird voted to reverse every death sentence that she reviewed, a record that state Republicans and business interests used to label her as “soft on crime” in a well-funded campaign to oust her in a retention election. Bird lost. 

But the politics of crime and public safety are different today than they were in 1986. Public defenders and civil rights attorneys have won upset victories in prosecutor elections in recent years, beating back arguments that they are too sympathetic to people who are accused of breaking the law and redefining what the criminal legal system ought to look like. Yet even as voters put them in charge of law enforcement, they remain overlooked for judicial appointments.

With his first appointment to the state supreme court, Newsom could have extended this movement for criminal justice reform to judicial selection, sending a message that public defenders should be represented on the court, and that the stigma associated with criminal defense is not just unfounded but harmful. He may still have more opportunities.