Imagine your alma mater was about to play its rival in the season’s biggest game. Imagine also that, the day before the game, it was revealed that the majority of the referees were alumni of the other school. Even though these individuals were sworn by their profession to be impartial on the field, it would be hard not to believe that their personal experiences might shade their calls, thus putting your side at a disadvantage. Such a scenario would rightly be considered unfair and objectionable, yet it is precisely the situation that many people face in federal court.
A recent study by the Cato Institute found that the odds are almost 50 percent that those filing civil rights or criminal cases in federal court will come before judges whose previous career experience included acting as courtroom advocates on behalf of the government. The chances of landing before judges who opposed the government were a slim six percent.
It has long been a truism in the legal field that the easiest route to obtaining a position as a federal judge was to start by serving as a prosecutor. The Cato study, however, was the first to generate actual statistics on this career path.
The research results only reinforced the common perception, finding that former courtroom advocates for the government were ‘‘vastly overrepresented on the federal bench.” Four times as many former prosecutors were serving as federal judges as were former criminal defense lawyers. When civil cases were added in on both sides, that ratio ballooned to 7 to 1.
Impact on rulings
Progress in various professions includes diversity in race and gender, and several studies have been done on the representation of these categories in the legal profession. And while in many fields it might make little difference what jobs people held prior to their current positions, the professional background of those seated on the federal bench should be taken into account because of the potential impact of their rulings.
Seldom has past work experience been considered a meaningful category of diversity. While the Obama administration made headlines for appointing more women and minorities to federal judge positions, the disparity in their professional background remained.
Casey Tolan, in an article titled “Why Public Defenders Are Less Likely to Become Judges—and Why That Matters,” reported that up to mid-2015, “just 14% of President Obama’s nominees for district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors.” This ratio of roughly 3 to 1 marked a small improvement compared to the status quo, but it also highlighted the gap that exists. The Alliance for Justice applauded Obama’s steps toward balancing demographics on the federal bench yet emphasized that succeeding presidents must consider professional diversity as well, if the system is to be fair and just for all Americans.
More recent selections to the bench have not trended in that direction. A March 2017 article on vox.com pointed out that, after the confirmation of Justice Neil Gorsuch, it had been a quarter of a century since anyone with a history in criminal defense had sat on the Supreme Court. This was especially poignant following a 2016 piece in the Tennessee Law Review, which presented the argument that deep-level diversity—a wide array of experiences—is equally or more important than race or gender diversity. “The New Diversity Crisis in the Federal Judiciary” demonstrated how the upsides of demographic diversity flattened out over time when appellate judges worked together drafting opinions; whereas, a variety of prior professional experiences affected the collaborations from start to finish.
The Cato study utilized district and appellate court websites, judges’ questionnaires regarding their work history submitted as part of their confirmation process, and Westlaw’s Almanac of the Federal Judiciary to compile their statistics.
The data were sorted into six categories: public defender, non-public defender, criminal defense lawyer, civil rights litigator, prosecutor, noncriminal courtroom advocate for the government, and non-litigating government attorney.
The conclusion that emerged from comparing the results was that “the federal judiciary is massively tilted in favor of former prosecutors over former criminal defense attorneys, and in favor of advocates for government more generally over advocates for individuals in cases against government.”
Critics have shunned such findings, arguing that concerns surrounding impartiality are overstated because judges are oath-bound to be unbiased in their rulings. Relying on an individual’s integrity and objectivity might be adequate in an ideal situation, but in the real world it seems either naive or negligent to imagine that one’s formative career experiences exert no influence over their judgments.
As the Cato Institute concluded, “No prosecutor would relish the prospect of trying a case before a jury half-filled with former criminal defense attorneys—just as no criminal defendant relishes the idea of going before a judiciary half-filled with former government advocates. But for now at least, that’s the system we have.”
There is a solution, writes Clark Neily, vice president for criminal justice at Cato, “a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases.”
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