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August 14, 2020

"Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench"

The title of this post is the title of this notable new report from the Center for American Progress and authored by Maggie Jo Buchanan. A few excerpts will highlight why I think this is an important topic for a sentencing blog:

The U.S. federal judiciary holds incredible sway over life in America. From the U.S. District Courts and the U.S. Courts of Appeals all the way up to the U.S. Supreme Court, the individuals holding lifetime appointments to the bench determine the contours of America’s laws and whose rights are protected under those laws.  But professional diversity on the federal appellate courts is severely lacking, with significant implications for the type of legal expertise underlying the opinions these judges issue.  Only about 1 percent of sitting circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting.  In contrast, the federal appellate bench is swamped with those who spent the majority of their careers in private practice or as federal prosecutors — making up more than 70 percent of all sitting appellate judges.  No sitting judge spent the majority of their career with a nonprofit civil rights organization....

This lack of diversity not only reflects the closed and elitist nature of the federal appellate bench but also represents a barrier to the courts’ ability to develop intellectually rich jurisprudence grounded in an awareness of a broad set of individuals’ experiences across the country.  To improve this state of affairs, significant disruptions are needed — from law school through every stage of an attorney’s prejudicial career—to broaden pathways to the federal bench and challenge long-held assumptions on the “right” type of attorney to take up a gavel....

As noted previously, the appellate bench is stacked with individuals from private practice backgrounds — particularly men from all race and ethnicities, who are significantly more likely than women to be from this professional setting.  Nearly two-thirds of circuit court judges spent the majority of their careers in private practice. The proportion of white male judges and male judges from communities of color from this field is close to 70 percent for both groups.  That proportion drops to less than 60 percent of the white women on the bench and less than half of women of color — speaking to the continuing discrimination women face when rising through the ranks of many law firms....

The second-most represented sector is the federal government.  The majority—more than 60 percent—of those judges spent the bulk of their careers within the federal government as prosecutors. Only one spent the majority of her career as a federal public defender.  Several of these judges held other positions throughout the U.S. Department of Justice (DOJ), and still others in this category spent the majority of their careers in the military or at other federal agencies, such as the U.S. Patent and Trademark Office.

White male judges in this category are less likely than judges from other demographics to have spent the majority of their careers in federal government.  In fact, male judges from communities of color are the demographic group most likely to have worked within federal government for the bulk of their careers, with the most common career path being a prosecutor.  The role of federal prosecutor was also the most common career path among all female judges who spent the majority of their careers in federal service.

The third-most represented sector is made up of individuals who spent the majority of their careers in state and/or local government.  Unlike their federal counterparts, however, the majority of these judges spent their government service careers in roles other than a state or local prosecutor.  Most common was a variety of different roles within a state attorney general’s office, with careers within a governor’s office or as a city or state solicitor also being common.

Finally, the number of judges who spent the majority of their careers as public defenders at the state level, including Washington, D.C., doubles the federal number — albeit from one judge to two.  Women in general are more likely than men to have worked at the state or local level, with a full one-third of judges who are women of color having spent the majority of their careers in such roles and white women ranking second-most likely to have done so.

August 14, 2020 at 11:46 AM | Permalink


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