"The life of the law has not been logic; it has been experience," so said Justice Holmes long ago. It's true enough but what kind of experience and for whom? As far as the federal judiciary goes, does it make a difference what is the professional background and experience of the persons serving on our federal bench. If the life of the law is experience, it seems inescapable that it does.
The Alliance for Justice has issued a report, Broadening the Bench: Professional Diversity and Judicial Nominations, pointing out the extremely disproportionate representation of corporation lawyers and prosecutors in the federal judiciary, a situation that President Obama has perpetuated. Here's some facts about President Obama's nominees for the federal bench:
- 8 (3.5%) district court and 2 (3.6%) circuit court judges who have worked for public interest organizations, for an overall total of 3.6% of all nominees.
- 85 (38%) district court and 27 (48%) circuit court judges who have served as civil government attorneys, for an overall total of 40% of all nominees.
- 5 (2.2%) district court and 9 (16%) circuit court judges who have been law professors, for an overall total of 5% of all nominees.
- 97 out of 225 district court nominees (43%) have been state or federal prosecutors. Thirty-four out of 225 (15%) have been state or federal public defenders, while 51 out of 225 (23%) have been private criminal defense attorneys.
- 21 of 56 circuit court nominees (38%) have been prosecutors. Ten of 56 (18%) have been private criminal defense attorneys, and 4 of 56 (7%) have been public defenders. Only one nominee, Jane Kelly, has been a federal defender.
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71% of President Obama's district court nominees have practiced with primarily corporate or business clients, while only 28% have practiced with either primarily non-corporate clients or a mix of corporate and non-corporate clients.
- 73% of President Obama's circuit court nominees have practiced with primarily corporate or business clients, while only 16% of practiced on behalf of noncorporate or a mix of clients.
- Overall, this imbalance between corporate and nine-corporate lawyers is 71% versus 25% in favor of corporate attorneys.
- Of all 281 circuit and district court nominees so far, 10 have significant experience representing workers and employees in labor and employment disputes. Four have experience representing environmental plaintiffs, while 26 have practiced in plaintiff tort or personal injury litigation.
'Diversity' is a difficult word. Clearly this post is speaking to diversity of an individual's legal experience prior to coming to the bench rather than the more common use of the word 'diversity' in relation to an individual's racial or ethnic family origins. The point of diversity of legal experience is well taken if it exposes a judge's unconscious bias one way or another. A former prosecutor may be more sympathetic to the government's side in a criminal prosecution compared to another judge who was a former criminal defense lawyer. Yet, compared to a former antitrust lawyer, for example, a former prosecutor might be more useful as a District Court judge just because so much of that line of work involves criminal trials. And, as you say, experience counts.
Posted by: Tom Fox | March 17, 2014 at 11:32 AM