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March 3, 2009

Noticing the biggest bias in the federal judiciary

President Obama has not yet nominated aany federal judges (which, perhaps, is giving all the judicial wanna-bees a good chance to make sure their taxes are paid up).  Nevertheless, the judicial appointment debates are heating up, with the Senate Republicans firing off this new letter urging the new guy in the White House to avoid an unduly partisan approach to nominations. 

I tend in these debates to be more concerned about professional than partisan biases.  And my concerns about professional biases were confirmed and heightened by an amazing statistic I saw in a new article in this great special issue of the Denver University Law Review on "The Election of President Barack Obama."  An article by Scott Moss, titled "The Courts Under President Obama," is mostly focused on Supreme Court nominees, but the final few pages examine lower federal court picks by Presidents Clinton and GW Bush.  And, while I was impressed to see that these presidents were pretty good (and pretty similar) on a variety of diversity criteria, I was amazed to see how many more persons with prosecuting/government experience were appointed to the bench compared to persons with public defense experience.

These specific statistics appear in a cool chart on p. 15 of the Moss article, and here are basic highlights:  Presidents Clinton and GW Bush appointed nearly 400 lower court judges who had prior experience as a prosecutor or government attorney, but appointed fewer than 60 who had prior experience as a public defender.  These numbers become even more unbalanced when one considers only circuit-level appointments:  Presidents Clinton and GW Bush appointed 73 circuit court judges with experience as a prosecutor or government attorney, and only 4 with experience as a public defender.  

Though I am sure at least a few attorneys who came to the bench with private practice experience had some exposure to criminal defense work, these stark numbers provide insight into why post-Blakely and post-Booker circuit jurisprudence has consistently tended to favor the government (until SCOTUS jumps in).  It also highlights why, though the public often believes that the criminal justice system tilts in favor of defendants, there can often be a practical tilt that runs in the other direction.

Some related old and new posts on judicial appointments:

March 3, 2009 at 05:41 PM | Permalink


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Though I am sure at least a few of the attorneys who came to the bench with private practice experience surely had some exposure to criminal defense work, these stark number surely provide some important insight into why post-Blakely and post-Booker circuit jurisprudence has had such a pro-government tilt.

This is an interesting statistic. I'm not sure what to make of it. I think it may be worth noting, though, that one can do defense work as either a pd or a private practitioner. One cannot, however, do prosecution work as a private practitioner (settting aside the statistically insignificant exceptions). PDs do good work and perform a great public service, but I imagine that most of the best criminal defense lawyers are in private practice.

Posted by: ab | Mar 3, 2009 5:50:34 PM

"PDs do good work and perform a great public service, but I imagine that most of the best criminal defense lawyers are in private practice."

This is a dangerous assumption. Keep in mind that PDs don't pick their clients. While there are many fine private defense attorneys (obviously), good PDs have the benefit of more experience, greater exposure to the full range of the prosecutor's office, and a better sense of what works in front of a majority of a forum's judges.

They might "lose" more often, but I think that goes back to the types of cases that are presented to their offices, not the caliber of their lawyering.

In the federal courts I think there's a small private defense bar that's very good, but beyond that select group one would be much better off with a Federal Defender. Those attorneys have comparatively small caseload and are expert with the guidelines, negotiating with the USAO, dealing with the probation department while they're drafting the PSI, etc. In other words-- all the key stages of the case are familiar terrain, and the key players are well known to the FPD.

Just a thought.

Posted by: Pedro | Mar 3, 2009 9:56:45 PM

I wonder what these Senators were doing the full 6 years they controlled the presidency, house and the senate and if they worried about 'unduly partisanship' during that time. Senators seems to have a very short memory.

Posted by: MarkM | Mar 4, 2009 5:31:36 AM

A "practical tilt" in favor of the government is a bit generous. In any event, I wouldn't care so much about inclinations if the judges had the competence to just apply the law. But they don't. The federal judiciary's competence has plummeted in the modern era, and this includes on the Supreme Court where reading oral argument transcripts reveals all kinds of weird (read: wrong) beliefs being expressed about very basic constitutional principles by sitting Justices. Many appeals court and district court judges should not even have licenses to practice law, as far as I can tell.

It's probably fitting given the robber-baron era we've been in the last couple of decades (think Lochner era). This kind of wealth concentration tends to have all kinds of perverse effects on the society at large, not the least of which is the rampant promotion of the incompetent (but well-connected) to the top.

Posted by: DK | Mar 4, 2009 11:41:07 AM

While I am not so naive as to not understand that hypocrisy is just part of politics, the Republicans continued demand for passage of their nominees ("just an up or down vote") when they denied the same to Clinton appointees for 8 years (one African-American judge from North Carolina saw his nomination to the 4th Circuit stalled for over 5 years!) continues to astound me at the sheer nerve of it. As for judging by former defense attorneys, I don't think we have to look beyond Judge Nancy Gertner in Massachusetts to see the quality of work that can be brought to bear, especially on sentencing issues. Judge Gertner's pre- and post-Booker sentencing work is a model for how is should be properly done.
[I am an assistant federal public defender]

Posted by: Sumter L. Camp | Mar 4, 2009 12:49:54 PM

Virginia state PD here. the kind words about us are very nice I was held up by this sentence: "the public often believes that the criminal justice system tilts in favor of defendants." I guess that's true? (i.e. I am willing to believe Prof. Berman has or has seen some data to support the statement?)

If so it is really mind-boggling. A meme left over from Nixon's political opposition to the Warren Court, maybe? I have never felt it to be true in my professional life.

Posted by: dgj | Mar 4, 2009 5:27:56 PM

Remember, one reason people would think that is due to what matters get reported on. The vast majority of cases, where defendants are at a huge disadvantage simply don't make it onto the radar. Little enough of the system makes it into the collective conciousness that anything that does is likely to be an outlier in at least some regard and often more than one.

So, people read about an exclusionary ruling and think that such things are extremely common. Compounding this is the media's difficulty in reporting legal decisions accurately.

Only people who pay attention are likely to see many of the details, and even those vary from place to place.

Posted by: Soronel Haetir | Mar 4, 2009 5:54:36 PM

Some judges who were prosecutors are harder on the govt than other judges. They know the right way to do things, and they hold the govt to that standard.

Posted by: ausa | Mar 6, 2009 2:57:05 PM

I do think it is true that ex-prosecutor judges can, occassionally, be particularly harsh on prosecutors who act incompetently or unethically. But I nevertheless suspect that, in most circumstances, ex-prosecutor judges are somewhat more likely to uphold the position of the Government.

When I think of judges and prosecutors, I always liken it to my own attitudes toward waiters. I did the job for several years, and as a result I tend to be very tolerant of mistakes, delays, etc.; knowing what a pain-in-the-ass the job can be, I am generally willing to assume my waiter is working conscientiously and is just busy/a victim of circumstance (i.e., kitchen delays, etc.). *But*, if I see my waiter smoking a cigarette outside or chatting up the bartender while my coffee is languishing empty or my food is up from the kitchen and getting cold, I get borderline postal. Basically, I take personal offense that someone would fail to take pride in the job...

On a separate note, I think two big factors affecting the PD/prosecutor disparity are: (1) Former defense attorneys, especially PDs who don't pick their cases, are politically vulnerable to attacks of the "he once defended a triple-rapist" sort. If the PD was any good, he or she most likely represented high profile, bad dudes and/or at least a few times succeeded in having drugs or other evidence suppressed in a serious felony case. These are not activities that generally endear one to the public (although if a particular member of the public is charged with a crime, he or she will likely find such activities very endearing). (2) As far as I can tell, judgeships are all about political connections, and being a prosecutor is a great way to make those; in fact, it is my impression that it is usually hard to be a top level prosecutor without them, as you either have to run for (state) office, or, to be a U.S. attorney, be appointed by the President. Even if you are just an assistant DA of some rank, you necessarily come to the attention of the elected/appointed DAs with the connections. Not that some PDs aren't well-connected, but it seems to be more built in to the structure of the DA side.

Posted by: Observer | Mar 11, 2009 1:11:49 PM

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