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December 7, 2008

One of the reasons why post-Booker circuit jurisprudence tends to be pro-prosecution

Especially since the Blakely and Booker rulings, I have taken to describing the U.S. Supreme Court to be the most liberal appellate court on non-capital sentencing issues in the country.  Today I discovered a bit of data that in part explains why the federal circuit courts have been so disinclined to apply dynamically the rights and remedies that the Blakely and Booker decision recognize.

The data concern the backgrounds of modern federal circuit court judges, and they appear toward the end of this new Washington Post article suggesting that the American Constitution Society (ACS) may become a resource for the Obama Administration in ways that the Federalist Society was for the Bush Administration.  Here's what the Post article reports, with a little context:

ACS members ... would like nothing more than to duplicate the Federalist Society's influence.  Last month, the organization published a series of policy briefs designed to be a legal road map for the next administration.  Among its suggestions are that the Justice Department re-energize civil rights enforcement, try terrorism suspects in civilian courts and appoint federal judges who have a broader range of life experiences.

Cyrus Mehri, a partner in the District law firm Mehri & Skalet who has been supportive of ACS, pointed to a survey his firm conducted showing that no one with a background in public interest law has been appointed to the federal appeals courts since 1981.  Also, the survey found, not one federal appeals court judge has substantial experience as an in-house counsel for a labor union.  Meanwhile, 45 percent have previously worked as state or federal prosecutors or attorneys general.

I am very suspicious of the assertion that "no one" with a public interest law background has been appointed to the federal circuit courts in over 25 years.  Indeed, I can think of more than a few Clinton circuit court appointees who had what I would consider a significant public interest background. 

Still, I think it is accurate to assert that former prosecutors and pro-government lawyers are problematically over-represented on the federal circuit courts. And that reality partially (but only partially) explains why federal prosecutors have won most post-Booker battles in lower courts.  Like those at the ACS, I am hoping the change that President-Elect Obama has promised will extend to the composition of the federal circuit courts.

Some recent related posts:

December 7, 2008 at 11:12 AM | Permalink


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45% having been state or fed prosecutors/AGs sounds low to me, I figured that would be much higher.
It's gotta be more than that... You can't get appointed to the federal appellate bench where you review criminal cases unless you've sought convictions of criminal defendants all on your own. It's like here in Harris County, Texas, Criminal District Court Judge is the highest position in the DA's office.

Posted by: BruceM | Dec 7, 2008 12:35:52 PM

And I will challange your thinking on this issue again, Doug.

I agree with this sentence from ACS with all my heart: "and appoint federal judges who have a broader range of life experiences."

And Eric Holder is an example of that? So far, when I look at Obama's Cabinet I see a lot of superficial diversity--diversity in race and sex--but not a great deal of diversity in life experiences. The new Homeland Security chief is an ex-prosecutor, for crying out loud. Holder, Daschle, Clinton, Richardson, Gates are all consummate political insiders. Where is the diversity in that? I understand and appreciate Obama's desire for professional competence; I share that value too. But I don't believe that value (or any value) should become all encompassing.

When I look at what Obama has done so far, my reaction is simply one of despair. If he won't promote diversity in his Cabinet, why would he do so in the judicial branch.

Posted by: Daniel | Dec 7, 2008 1:33:04 PM

After making the post above, I stumbled across this article from MSNBC entitled: "Academic elites fill Obama's roster: Critics worry about insularity as Ivy League graduates crowd cabinet posts"


Perhaps belonging to the academic elites is the reason Doug is so supportive.

Count me in as one of those critics who worry about insularity. Extremely ironic considering that Obama claims that one of the great failures of the Bush presidency was "group-think".

Posted by: Daniel | Dec 7, 2008 2:11:44 PM

It is truly shocking that you do not believe that state and local prosecutors are practicing "public interest law." The vast majority of prosecutors see themselves as, and in fact are, seeking to do justice: for victims, defendants, and society as a whole. Why this isn't practicing law in the public interest is beyond me. It can't be that defending those who have committed serious crimes, for example, as a public defendner (an endeavor that I am sure you would regard as "public interest law"), is practicing law in the public interest, but prosecuting those same defendants is not.

Posted by: SpongeBob | Dec 7, 2008 8:35:09 PM


I certainly view prosecutors as lawyers working for the public interest, and I am sorry for suggesting otherwise. (I was parroting the terms from the Post article.) That said, prosecutors have the best (and most solvent) client in the form of the government and I think the point here was that few on the circuit courts have experience working for public clients other than the government.

Sorry for any offense stemming from my loose use of the terms I took from the Post account.

Posted by: Doug B. | Dec 7, 2008 10:04:23 PM

I don’t consider prosecutors to be “public interest” lawyers. I am not saying that all are hacks, power-hungry, or ticket-punchers. However, they are litigating on behalf of a government entity. They have no independent duty to assess the public interest for themselves.

Also, they practice in an extreme degree of protection. They are rarely threatened by young prosecutors with indictment or worse simply for doing their job. Therefore, their work-life experiences are decidedly different.

And, quite frankly, as I have pointed out many times, the current judiciary simply does not have much personal experience with the ugly side of the law. Few, if any, current law clerks have been beat up by cops. Few, if any, federal judges have been searched after they were found sitting on their stoop. So, if anything our definitions of “reasonable” reflect the “reasonable” of the upper-middle class, rather than the anti-American scum that can’t be bothered to go to law school and live in a gated community.

Posted by: S.cotus | Dec 8, 2008 12:18:41 PM

Two judges with "public interest-y" backgrounds jump to mind: Ninth Circuit Judges Paez and Berzon. Judge Paez worked for California Rural Legal Assistance and then was director of litigation for Legal Aid in LA. Judge Berzon wasn't in house at a labor union, but her private firm worked on the "labor" side of labor law.
Of course, those two famously squeaked through the Senate, and only after years of trying.

In general, even if there are a few outliers, Mehri's basic point is sound: The federal courts are overwhelmingly staffed by former prosecutors.

Posted by: Observer | Dec 8, 2008 2:44:59 PM

Fifth Circuit Judge Prado is fond of pointing out that he is the only former ass't fed. pub. defender on any of the federal circuit courts. Of course, after that, he was the US Att'y for WD Tex., so he falls into both categories.
There are more federal prosecutors than federal defenders, but it is still pretty shocking that the disparity in experience in the bench is so great (if he is correct, and I have no reason to think he is not).

Posted by: Apu | Dec 9, 2008 9:20:56 AM

I read this blog because I find it informative and have an interest in the subject matter. It does get old having my profession (I am a prosecutor) consistantly scorned and derided. Usually I just ignore it as the sour grapes of defense attorneys, but I just can't let S.Cotus's statement that prosecutors "have no independent duty to assess the public interest for themselves" go without comment.

The truth is, at least in Ohio, Prosecutors are the only specialization of attorneys to have a specific section in the Rules of Professional Conduct (3.8 Special Duties of a Prosecutor) to govern their unique position. The comment following that rule defines a prosecutor's unique duty: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded justice and that guilt is decided upon the basis of sufficient evidence."

If that isn't a specifuc duty to serve the public interest, I don't know what is.

Posted by: Keith B. | Dec 9, 2008 10:23:17 AM

The former chief litigator of the ACLU's women's rights project is a Justice on the Supreme Court... which doesn't refute Mehri's point, of course, but it's relevant information.

Posted by: | Dec 9, 2008 9:52:38 PM

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