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September 12, 2009

Seeking thoughts on a "professional judiciary" for sentencing law

Over at Concurring Opinions, Gerard Magliocca has this post, titled "A Professional Judiciary?", which note and criticizes the early pattern of President Obama to elevate lower court judges in his nomination choices. Here it is in full:

Yesterday I was struck by an interesting fact. Thus far, all but one of President Obama’s Circuit Court nominees are sitting District Court judges. Justice Sotomayor, of course, was promoted by President from the Second Circuit after serving on the District Court in New York.

I think this is a bad trend. One of the strengths of our judiciary, in contrast to the European civil service tradition, is that we draw on people with a wide variety of backgrounds (private attorneys, elected officials, prosecutors, and . . . yes, professors).  Narrowing the pool to sitting judges harms the quality of the bench and creates undue pressure on District judges to act in a politically safe way in the hope of getting promoted.  There’s nothing wrong, of course, with the occasional District Judge elevation. But can the White House really find nobody else who is qualified?

Regular readers know I am a big fan of judicial diversity, so I am also troubled by the early pattern -- though I also expect it to change over time because I think it mostly represents Obama's political desire for "safe" picks rather than a judgment that others are not qualified or needed for circuit courts.  That said, I do think federal circuit sentencing law might be improved by having more circuit judges who have experienced sentencing first-hand.

Reflecting more broadly on these issues, I was thinking about the potential value of a "professional judiciary" that was much more diverse and dynamic in its judicial history than what we are seeing in President Obama's early picks.  Specifically, what might Gerard and others think if Obama (or some other president) made a practice of regularly nominating sitting state lower court judges (including juve judges and other specialty court judges) on the federal bench?  (More than a few nominated district and circuit judges cross-over this way, but I think it is more often the exception than the rule.)

Gerard's post has generated a lot of thoughtful comments over at CO, and I hope readers of this blog might also get into the act (and, of course, give the discussion a special sentencing spin, as appropriate).

September 12, 2009 at 03:28 PM | Permalink


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Tracked on Sep 14, 2009 6:09:32 PM


Interesting that Magliocca when stating:

"One of the strengths of our judiciary,....is that we draw on people with a wide variety of backgrounds (private attorneys, elected officials, prosecutors, and . . . yes, professors)"

fails to identify as a weakness the absence of defense attorneys in judicial appointments. I don't know about elsewhere but in California judges coming from a defense background are an almost vanished species.

Rodney Kingsnorth
Professor of Sociology California State University Sacramento

Posted by: Rodney Kingsnorth | Sep 12, 2009 3:43:46 PM

See this comment.


Posted by: Supremacy Claus | Sep 13, 2009 11:17:25 PM

To professor Kingsnorth's comment I'd add that prospects for a more even-handed judiciary would be vastly improved by lowering the ratio of former prosecutors appointed to the bench...to, say, no more than one of every five.

Posted by: John K | Sep 14, 2009 9:29:48 AM

Hi Doug,

I think appointing more state court judges would be great. They do bring a different perspective from the average District Court judge. Indeed, I see that Obama today nominated a judge on the Virginia Supreme Court to the Fourth Circuit.

BTW, I did think about listing "defense attorneys" as a separate category, but I thought that was largely covered by "private attorneys." Now it is true that public defenders are not covered by that term. I think that just reflects the fact that the politics of appointing a public defender to the bench are tricky -- it's not a normative statement.

Gerard N. Magliocca

Posted by: Gerard | Sep 14, 2009 8:29:09 PM

Of course, even with all the elevations from district to circuit, one major difference between our judiciary and civil-service models is that almost all of those district judges came from diverse backgrounds before being appointed to the bench. So is Obama's current pattern of appointments really doing much to eliminate diversity in appellate picks? Seems like it mostly means that various people from diverse backgrounds will be on the circuit courts but will actually have a sense of what happens in the courts they are reviewing.

Posted by: DM | Sep 14, 2009 9:35:46 PM

We have a few college students online from Connecticut College and we love your blog postings, so well add your rss or news feed for them, Thanks and please post us and leave a comment back and well link to you. Thanks Jen , BlogCalifornia State University Sacramento

Posted by: California State University Sacramento | Dec 10, 2009 7:33:09 AM

A nice post covering an important issue. The only remark would be,
you never know what are the requirements for your editor, until you have completed at least a level.

Posted by: Resume Writing Services | Jul 14, 2010 6:47:25 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB