Are a Disproportionate Number of Federal Judges Former Government Advocates?

It has been said that the surest way to become a federal judge is to first be a prosecutor. Cato’s Project on Criminal Justice devised a methodology to test that perception.

Picture of a Gavel
  • Introduction and Summary of Findings
  • Summary of Previous Studies
  • Procedure and Findings
  • Why It Matters
  • Endnotes

Introduction and Summary of Findings

It has been said that the surest way to become a federal judge is to first be a prosecutor. And it 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. As explained below, the disproportion is both striking and concerning.


Summary of Previous Studies

People have long been interested in the makeup of the federal judiciary and concerned about the relative lack of diversity—including professional diversity—among federal judges. As discussed below, there have been numerous studies examining the racial and gender diversity, education, and professional experience of judges and judicial nominees. But it does not appear that anyone had ever studied the professional background of each sitting federal judge to determine whether there is a significant imbalance between judges whose formative professional experience involved advocating for government in court and judges whose experience involved challenging the exercise of government power over individuals and institutions. Still, despite being more limited in scope and less precisely focused on the for-government/against-government divide, the findings of prior studies are fully consistent with this one.

For example, an article titled “Why Public Defenders Are Less Likely to Become Judges—and Why That Matters” notes that as of July 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.”1 This reflects a larger trend at the federal and state levels, where “judges and justices are much more likely to be former prosecutors than former public defenders.”2 Moreover, “[t]he discrepancy in judicial experience isn’t just about public defenders. Lawyers who have worked at civil rights groups like the American Civil Liberties Union or public interest law organizations like the NAACP Legal Defense Fund are also underrepresented in the judiciary.”3 These findings have been confirmed by others, including the Alliance for Justice, which commended Obama’s attempt to bring demographic diversity to the bench but stressed the need for future administrations to “broaden[] the bench” in terms of professional diversity.4

Examining the professional backgrounds of Supreme Court justices, the Harvard law professor Andrew Crespo found that since the 1970s, the number of justices confirmed who have worked as a prosecutor has increased threefold.5 Additionally, a 2017 Vox article, written in the wake of Justice Neil Gorsuch’s nomination, points out that the Supreme Court has not had a justice with criminal defense experience in 25 years.6 The article quotes Tejas Bhatt, an assistant public defender in New Haven, Connecticut, who suggested that federal judges tend to have “ticked all the political checkboxes on their career starting from when they were 15,” and that one of those boxes includes working as a prosecutor.7

Other studies suggest the importance of diversity, including professional diversity, in the makeup of the entire federal judiciary. A 2016 article by Jason Iuliano and Avery Stewart, titled “The New Diversity Crisis in the Federal Judiciary,” argues that a diversity of experiences, or deep-level diversity, provides as much or more enhancement to the judicial decision-making process than demographic diversity.8 Specifically, as individuals collaborate over a period of time (as appellate judges do when they sit in panels and draft opinions together), the benefits of demographic diversity appear to diminish.9 Conversely, deep-level diversity continues to enrich the decision-making process by ensuring alternative experiences and attitudes.10

NAACP Legal Defense Fund president Sherrilyn A. Ifill believes judicial diversity of backgrounds and experiences “promotes public confidence in the legitimacy of the courts” and “enriches judicial decision making,” particularly at the appellate level.11 She suggests that “[a]lthough there’s been very little interest in exploring the importance of professional-background diversity, the value of bringing [government-challenging] experience to the bench is fairly non-controversial.”12


Procedure and Findings

In order to ensure accurate, reproducible results, this study uses the following procedure to assess and characterize the professional backgrounds of all currently serving,13 non-senior-status federal judges except those on the Federal Circuit, which does not have jurisdiction over criminal cases.

First, using each district and appellate court’s respective websites, the names of all nonsenior, Article III judges were placed in a spreadsheet. Then each judge’s professional background was assessed and crosschecked using various publicly available sources, starting with Westlaw’s Almanac of the Federal Judiciary. Professional experiences, comprised of dates and titles, from the Almanac of the Federal Judiciary were then compared with the work history provided by judges during their confirmation process in response to questionnaires from the Senate Judiciary Committee. In the instances where a questionnaire could not be found, past professional titles and relevant dates provided in the Almanac of the Federal Judiciary were crosschecked using other legal databases such as the Government Publishing Office, HeinOnline, and Ballotpedia. If the preceding steps did not yield sufficient information to confidently assess a given judge’s prior professional experiences, then his or her name was entered in the “attorney” search field of the Westlaw legal database to identify any reported cases he or she may have litigated before being nominated to the bench.

Judges’ professional experiences were then coded according to six distinct categories: prosecutor, noncriminal courtroom advocate on behalf of government, nonlitigating government lawyer (e.g., agency general counsel), civil liberties litigator (e.g., ACLU, Institute for Justice, Becket Fund, etc.), non-public-defender criminal defense attorney with significant (i.e., more than sporadic) criminal-defense experience, and public defender.14 All other professional experiences were documented under “Other Experience” but were not assigned a numeric code.

The following tables summarize the results of this coding in three distinct ways: total number of judges in each category; judges with experience as prosecutors compared to those with experience in criminal defense; and judges with experience as courtroom advocates for government more broadly compared to those with experience as courtroom advocates for individuals more broadly.

As these numbers plainly reflect, the key takeaway is 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. Looking only at criminal cases—and excluding judges with experience on both sides—former prosecutors (223, 29.5 percent) outnumber former criminal defense attorneys (58, 7.7 percent) by roughly four to one. Similarly—and again, excluding those with experience on both sides—former courtroom advocates for government (336, 44.5 percent) outnumber former advocates for individuals against government (46, 6.1 percent) by roughly seven to one.


Why It Matters

Some people might be inclined to dismiss the federal judiciary’s imbalance between former government advocates and former government opponents as irrelevant. After all, judges take an oath to be impartial and to faithfully apply the laws and the Constitution in each case, regardless of the outcome. But this blinks at deep-seated and empirically valid intuitions that most people have about the potential for bias created by an adjudicator’s past experiences—especially experience that involves advocating for a particular institution or cause. Consider the following illustrations:

Imagine you wanted to sue your doctor for medical malpractice, but you were required to pursue that claim through private arbitration instead of the courts, as is increasingly common. Now imagine you can decide between two different arbitration firms. The first one hires arbitrators from all different legal backgrounds, including lawyers who used to sue doctors in medical-malpractice cases and lawyers who used to defend doctors in those cases. The firm also makes it a point to ensure that its arbitrators are not disproportionately drawn from any particular legal specialization or orientation (i.e., plaintiff-side versus defense-side). By contrast, the second arbitration firm goes out of its way to hire former medical-malpractice defense lawyers, who are therefore significantly overrepresented within that firm’s ranks. Can there be any doubt as to which arbitration firm you as a medical-malpractice plaintiff would choose to hear your case? Indeed, wouldn’t it be absurd to suggest to someone in your position that they simply flip a coin to choose between the two firms, given that all arbitrators take an oath to be neutral—so who cares whether the arbitrator assigned to your case used to sue doctors or defend them earlier in her career?

Or imagine you’re a diehard Ohio State football fan, and every time the Buckeyes play the Wolverines, three or four of the seven referees on the field are Michigan alums, while only one is an Ohio State alum. You’d most likely prefer a more balanced officiating crew because even though referees are required to be neutral, there are many close calls in football, and it’s reasonable to suppose that even the most conscientious referee might tend to shade those calls in favor of his alma mater. And of course, as any football fan knows, one call can decide a game—or even a whole season.

Here’s a final illustration that cuts closer to home. Imagine you’re a former criminal defense attorney who gets called for jury duty in a drug-dealing prosecution. Your chances of being seated on that jury are slim to none. Why? Because the prosecutor will most likely use one of her “peremptory” challenges to keep you off the jury on the entirely reasonable assumption that, in light of your professional background, you are likely to have certain biases and predispositions that will tend to color both your perception and your assessment of the prosecution’s case.

The fact is that our current worldview is necessarily influenced—not dictated, but influenced—by our personal and professional experiences. And while a particular set of past experiences doesn’t necessarily translate into a corresponding worldview, neither does it mean that concerns about the potential for bias are completely unfounded. On the contrary, it is perfectly reasonable for an Ohio State fan to balk at the prospect of an officiating crew consisting mostly of Michigan alums, just as it is perfectly reasonable for a criminal defendant to be leery of a federal bench on which former prosecutors outnumber former criminal defense attorneys four to one.

The radical imbalance between former government advocates and former government opponents on the federal judiciary is particularly concerning when we consider what federal judges actually do, as well as the key role of the judiciary in our system of government. While the bulk of the federal court docket involves disputes between private parties, around 20 percent of all federal cases are criminal prosecutions, with another 15 percent involving various challenges to government power, including civil rights cases and habeas corpus petitions. Some of these are literally a matter of life and death—and not just in capital cases—whereas others involve constitutional challenges to laws that restrict people’s ability to work, speak, worship, travel, get married, or raise their own children. Other cases involve fundamental questions regarding the size, scope, and nature of government power, including the legitimacy of our ever-expanding, increasingly unaccountable federal bureaucracy. If a person’s last job before judging the legality of that bureaucracy was representing its interests in court, who could fault the civil rights plaintiff for suspecting that the agency she’s suing might enjoy a bit of a hometown advantage?

As demonstrated above, when criminal and civil rights cases pitting individuals against government are filed in federal court, the chances are nearly 50 percent that they will be heard by a judge who served as a courtroom advocate for the government (but never for individuals against government), whereas there is only a 6 percent chance that the case will be heard by a judge who represented individuals in cases against the government (and never served as an advocate for government). 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.


Acknowledgments

The author is indebted to Haley Goeckel, who performed the bulk of the research and coding for this study, and to Katherine Rankin, who updated and further organized the data. The study would not have been completed without their sterling efforts. Any errors are the responsibility of the author alone.

Clark Neily

Clark Neily is vice president for criminal justice at the Cato Institute. His areas of interest include constitutional law, overcriminalization, civil forfeiture, police accountability, and gun rights.

Notes