Courts

Federal Appellate Bench Is A Prosecutorial Retirement Home

The lack of professional diversity may not be as glaring, but it's still important.

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White, male, and probably a prosecutor.

The federal judiciary has a woeful lack of racial and gender diversity. But you probably gleaned that from a cursory glance at the bench. What you can’t necessarily see from the courthouse directory is the profound lack of professional diversity among federal judges. Put simply, it’s a retirement home for former prosecutors and corporate attorneys and that’s a problem.

The Center for American Progress has a new column about this situation.

The column finds that only 1 percent of all federal appellate judges spent most of their careers as public defenders or legal aid attorneys. And while some appellate judges have engaged in civil rights-focused work while in settings such as law schools, out of the current sitting appellate judges, not one spent the majority of their career at a nonprofit civil rights organization, as Justice Thurgood Marshall did with the NAACP.

We’ve been writing about this since 2013. AFJ put out a great report on it in 2014. But now we’ve had three years of Trump appointees and while they’ve offered us some limited respite from the endless stream of prosecutors and Biglaw lawyers, they’ve done so by sending up people with no experience at all which isn’t much better. But hey, we now have Mitch McConnell’s intern heading to the DC Circuit to fill a vacancy that doesn’t even exist yet!

As we’ve explained before, critics of Trump’s judicial nominees keep coming back to their “lack of trial experience” which just reinforces this imbalance. Because you know who has a lot of trial experience? Prosecutors. And so the cycle continues.

This lack of professional diversity has real impacts on the shape of the law:

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Josie Duffy Rice has an excellent piece (focused on elected judges, but her conclusions on this point transcend that frame) on how former prosecutors routinely overreach on criminal sentencing, uncritically bringing their “everyone’s rotten” and “big numbers or else” mindset to their new role. The homogenization of the judicial résumé — a byproduct of the fetishization of elite academic backgrounds — has morphed the judiciary in ways that lawmakers wouldn’t necessarily expect. To use the Chief Justice’s preferred myth, if judges are calling balls and strikes, the narrowing of judicial backgrounds has produced a judiciary that interprets the “real” strike zone as half the size.

So when the next administration sets out to address the lack of diversity on the federal bench, spare a second to consider this vector of diversity too. Because there are ways to address all of the diversity problems at the same time.

The Startling Lack of Professional Diversity Among Federal Judges [Center For American Progress]

Earlier: New Report Finds Federal Judiciary Just As Busted As You Thought It Was

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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