At Sentencing Law and Policy, Doug Berman does a recap of statistics of the former positions held by federal judicial nominees. The question posed was whether President Biden will make the changes to the bench that he’s rumored, and anticipated, to make by nominating criminal defense lawyers and civil rights lawyers in robes.
There is a long-standing concern, especially among criminal justice reform advocates and civil rights groups, that the federal judiciary is badly skewed because of the disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience.
If you read these words and a synapse or two snaps as you wonder, what does one thing have to do with another, you’re not alone. Associate Justice Sonia Sotomayor was a prosecutor for most of her career, and yet she was, she said, an “empathetic Latina.” Indeed, this was not a contradiction. On the other hand, New York Justice Harold Rothwax was a public defender before taking the bench, and he was called the “Prince of Darkness” for good reason. This isn’t to say that PDs can’t make good judges, but that the stereotypical assumption that prior history is a predictor of future performance is simplistic.
[I]t is generally perceived that a disproportionate number of federal judges served as government lawyers before donning a robe. Until now, however, no one had ever examined the professional background of every sitting federal judge to see whether that perception is true. So Cato’s Project on Criminal Justice devised a methodology for coding judges’ prior professional experiences and went through the federal judiciary judge by judge to test that perception.
What we found confirms the conventional wisdom: Former government lawyers — and more specifically, lawyers whose formative professional experiences include serving as courtroom advocates for government — are vastly overrepresented on the federal bench. Looking only at former prosecutors versus former criminal defense attorneys (including public defenders), the ratio is four to one. Expanding the parameters to include judges who previously served as courtroom advocates for government in civil cases as well as criminal cases, and comparing that to judges who served as advocates for individuals against government in civil or criminal cases, the ratio is seven to one.
The reasons why certain practice niches are far more likely to produce the sort of people who catch a senator’s eye are fairly obvious and have been discussed here before. In fact, it’s surprising there are any criminal defense lawyers on the federal bench. We’re not the sort of people senators get to know up close and personal, while still being senators.
But Clark’s running of the numbers is the sort of thing that can be simultaneously persuasive to those who want to believe while being utterly pointless. Where I see virtue in a deeper pool of candidates, Clark sees candidates from the defense side of the courtroom as being more biased in favor of, or at least less biased against, the defendant.
The point is to “skew” outcomes to favor the sides he, and many well-intended people, believe needs favoring. It similarly assumes that judges whose careers were spend as prosecutors or in the service of government are bad judges, or at least insensitive to the needs of people.
The problems here, prejudice favoring one side or the other, are very much real. Among the attributes of a good judge is lack of bias. The additional problem, a limited breadth of experience such that they may be overly aware of the influences on the government side but unaware of what it’s like to be a trench lawyer or to sit with a crying mother, or worse, to have never tried a case or gotten a paycheck whether you did good work or nothing that week, is also very real.
The question is whether drawing judges from one side or another solves these problems. Remember when Joe Biden said that “you ain’t black” if you vote for Trump? Assumptions about identity, and the bundle of beliefs that are assumed by stereotype, are being employed here to assume that all criminal defense lawyers, in general, and public defenders, in particular, will be prejudiced judges, inclined to favor the “right” beliefs, just as black people are assumed to favor Biden if they’re “really” black.
Here’s a dirty little secret about the course of a legal career. A lot of lawyers started as prosecutors or public defenders to get jobs, to get courtroom experience, to be lawyers. At some point, they left. Some switched sides. Most eventually became private practice criminal defense lawyers. Some even went into civil law, some biglaw, marketing their trial experience which was sorely lacking in those “top-o-the-class” kids who nailed the biglaw jobs right out of law school.
In other words, they didn’t hold these jobs because of any deep-seated political conviction, but because they were jobs. And they didn’t leave the jobs with any deep-seated political conviction, but with a greater breadth of understanding that neither side sits at the right hand of whatever god they prayed to. They learned to appreciate the burdens of being a defendant trying to deal with the overwhelming power of the government. They learned to appreciate that there were real victims in the world, whose suffering also demanded their empathy. They learned that there were bad dudes out there who would do serious harm but for their efforts to stop it from happening.
There is nothing wrong with deepening the pool of judicial nominees to select the best people, the most intelligent, experiences and fairest, to be judges. Excluding criminal defense and civil rights lawyers was foolish, as it reduced the pool of qualified candidates for the bench. But nominating them because of their prior job rather than because they possess the qualifications one wants from a judge is simplistic.
Bad judges are bad, whether they used to be prosecutors or public defenders. And to assume that experience as a public defender magically makes someone a judge you want because she’ll be biased for you is exactly what isn’t needed if we want a viable legal system. Lawyers are advocates, not judges. Do you want to walk into court knowing that no matter what you argue, how sound your position, how grounded in precedent, you’re going to lose no matter what because the judge you draw from the wheel is the avenging angel of the other side? Is that what we want from the Least Dangerous Branch?