The Importance of a Diverse Federal Judiciary

Much has been written about the importance of diversity in the legal profession generally and among judges in particular.

March 25, 2021 • Testimony

Subcommittee on Courts, Intellectual Property, & the Internet Committee on the Judiciary U.S. House of Representatives

Dear Chairman Johnson, Ranking Member Issa, and Members of the Subcommittee:

My name is Clark Neily, and I am an attorney, adjunct professor at Antonin Scalia Law School, and Senior Vice President at the Cato Institute. I would like to thank the Subcommittee for convening this hearing on The Importance of a Diverse Judiciary, on March 25, 2021, and for providing the opportunity to express my views regarding this important subject.

In particular, I would like to draw the Subcommittee’s attention to the lack of professional diversity on the federal bench and particularly to the disproportionate number of former prosecutors and other courtroom advocates for government as compared to former public defenders and civil rights lawyers. Among federal judges, former courtroom advocates for government outnumber former courtroom opponents of government by a ratio of seven to one. This does not inspire confidence on the part of litigants who find themselves adverse to the government in court, whether as criminal defendants or civil rights plaintiffs, and there can be little doubt that the extraordinary overrepresentation of former government lawyers on the bench has significantly affected the development of legal doctrine.

Much has been written about the importance of diversity in the legal profession generally and among judges in particular. As a former federal law clerk and career constitutional litigator, I strongly endorse the proposition that those who preside over our courts should reflect the diversity of the communities they serve. One form of judicial diversity that deserves far more attention than it receives is diversity of professional background—especially among judges whose formative professional experience involved representing the government in court versus those whose formative professional experience involved challenging the government in court.

As explained in the accompanying report titled “Are a Disproportionate Number of Federal Judges Former Government Advocates?”, Cato scholars examined the professional backgrounds of more than 700 sitting federal judges and coded each according to whether he or she had significant experience working as a prosecutor (or other courtroom advocate for government), a criminal defense attorney (including public defenders), or a public interest lawyer at organizations like the ACLU, the Innocence Project, or the Institute for Justice.

What we discovered is that about half of all federal judges had significant experience in one or more of those fields while half did not. Among the former, some 44.5 percent of judges had significant experience representing the government in court against individuals (but not the other way around), whereas only 6.1 percent of judges had significant experience representing individuals against the government (but not the other way around). (About 13 percent of judges had experience on both sides—as courtroom advocates for and against government.) Thus, as noted above, the ratio of former courtroom advocates for government versus former courtroom advocates against government is an extraordinary seven to one. Notably, of the nine sitting Supreme Court Justices, only Justice Amy Coney Barrett has never represented the government in court—a professional hallmark she shared with the Justice she replaced, Ruth Bader Ginsburg.

The notion that such an extraordinary imbalance between former government advocates versus former government opponents presents no serious concerns is not credible. To the contrary, the Biden Administration has already asked senators to recommend and prioritize potential nominees who have served as public defenders or civil rights lawyers in an effort to address the massive imbalance documented in the attached report and discussed in this Statement.1 In my judgment this is an enlightened and long overdue change to the historic overreliance on former government lawyers, including particularly prosecutors for these vital positions.

There are several reasons why we should be concerned about a federal judiciary that is disproportionately composed of former prosecutors and other courtroom advocates for government.

First, one of the most important things federal judges do is resolve disputes between individuals and government over the government’s power to restrict people’s freedom in various ways, including censoring their speech, taking their property, or even locking them up in a prison cell. When people challenge the government’s authority to do those things, they should be confident that they will have access to a judiciary that is free not just from actual bias but from the appearance of bias as well.2 As documented in the attached study, however, 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). Those figures certainly would not inspire confidence on the part of litigants seeking to have their disputes with government resolved in a truly neutral forum.

Second, there is abundant empirical evidence to support the commonsense notion that judges’ personal experiences and prior professional backgrounds can influence the way they decide cases.3 Thus, for example, the presence of a female judge on a three‐​member court of appeals panel is a strong predictor of rulings in sexual discrimination cases.4 Similarly, when asked whether African‐​Americans are treated fairly in the criminal justice system, 83 percent of white judges said they were, but just 18 percent of Black judges said so.5 Research indicates that socalled “deep‐​level diversity”—including a person’s attitudes, personality, beliefs, values, knowledge, educational background, and life experiences—can have an even greater impact on group decision‐​making than so‐​called “surface‐​level diversity,” with groups comprised of individuals with diverse personality types outperforming homogenous groups by a wide margin on complex decision‐​making tasks.6 Thus, as Jason Iuliano and Avery Stewart have explained, “there is strong reason to believe that the judiciary also benefits from deep‐​level diversity.”7

Finally, given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David‐​versus‐​Goliath fight for justice. To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and creates a bad impression for the justice system as a whole.

Americans deserve a federal judiciary that is representative of the communities it serves and that has the ability to resolve disputes between individuals and government in a way that is not only substantively fair but carries the appearance of fairness as well. A judiciary that is disproportionately comprised of former prosecutors and other courtroom advocates for government does not provide the appearance of fairness and will not inspire confidence in citizens who come before it to have their disputes with government resolved. The longer we wait to begin rebalancing the composition of the judiciary, the harder that job will be. As the Biden Administration has correctly acknowledged, the time it is time to get to work.

About the Author

1 Harper Neidig, “Biden team asks Senate Democrats to recommend public defenders, civil rights lawyers for federal bench,” The Hill, Dec. 30, 2020, https://​bit​.ly/​3​v​XA7Fk.
2 See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986) (“The Due Process Clause may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, justice must satisfy the appearance of justice.”) (cleaned up).
3 See, e.g., Jason Iuliano & Avery Stewart, The New Diversity Crisis in the Federal Judiciary, 84 Tenn. L. Rev. 248, 256 (2016); Emily Hughes, Investigating Gideon’s Legacy in the U.S. Courts of Appeals, 122 Yale L. J. 2376, 2388–89 (2013); Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empiral Study of Judicial Reasoning, 73 NYU L. Rev. 1377, 1473 (1998) (noting that a review of district court judges found that a career background as a prosecutor was positively correlated with increased support for the constitutionality of the U.S. Sentencing Commission and sentencing guidelines); Stuart S. Nagel, Judicial Backgrounds and Criminal Cases, 53 J. Crim. L. Criminology & Police Sci. 333 (1962).
4 Juliano & Stewart, The New Diversity Crisis, supra at 258.
5 Id. at 260.
6 Id. at 263.
7 Id. at 265.