So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?
There is a long-standing concern, especially among criminal justice reform advocates and civil rights groups, that the federal judiciary is badly skewed because of the disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience. As noted in this post, Clark Neily at Cato has done great work on this front with this report from late 2019 with these core findings:
[I]t is generally perceived that a disproportionate number of federal judges served as government lawyers before donning a robe. Until now, however, no one had ever examined the professional background of every sitting federal judge to see whether that perception is true. So Cato’s Project on Criminal Justice devised a methodology for coding judges’ prior professional experiences and went through the federal judiciary judge by judge to test that perception.
What we found confirms the conventional wisdom: Former government lawyers — and more specifically, lawyers whose formative professional experiences include serving as courtroom advocates for government — are vastly overrepresented on the federal bench. Looking only at former prosecutors versus former criminal defense attorneys (including public defenders), the ratio is four to one. Expanding the parameters to include judges who previously served as courtroom advocates for government in civil cases as well as criminal cases, and comparing that to judges who served as advocates for individuals against government in civil or criminal cases, the ratio is seven to one.
Taking a slightly different approach to these issues, the Center for American Progress produced this August 202 study with an even more stark accounting of professional imbalance in the federal circuit courts:
[P]rofessional 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.
Notably, though I can think of a few prominent former criminal defense attorneys that Prez Barack Obama placed on the federal bench, this recent article highlights that he did not significantly improve these historic imbalances: "Around 14% of President Obama’s nominees for federal district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors."
Encouragingly, there is now considerable chatter and seemingly considerable effort focused on Prez Biden making sure a much greater number of his judicial nominees are criminal defense or civil rights lawyers. Here is just some of the recent press discussions on this front:
From The Hill, "Biden team asks Senate Democrats to recommend public defenders, civil rights lawyers for federal bench"
From NBC News, "After Trump, Democrats set out on a mission to 'repair the courts'"
From Reason, "Biden's Judicial Picks Should Include Lawyers Who Battled the Government in Court"
From the San Diego Union-Tribune, "Judges with criminal defense or civil rights backgrounds are rare in federal court. We need more."
Given the existing imbalances, I do not think it would be problematic or misguided for Prez Biden to aspire to have all of his judicial nominees, at least during his first year in office, be persons with criminal defense or civil rights backgrounds. Certainly, I hope his very first judicial nominee should have this professional history (and elevating U.S. District Judge Ketanji Brown Jackson to fill Merrick Garland's seat on the DC Circuit, as has been discussion, would be a great way to start). And I am certain there is an existing pool of many thousands of qualified potential nominees with significant criminal defense and/or civil rights experience from which to pick for the roughly 50-100 federal judicial nominees he may be able to make in the coming year.
But I am prepared to admit that it is likely unrealistic for anyone to expect all of Prez Biden's 2021 judicial nominees to be criminal defense or civil rights lawyers. But what is realistic? Would it be crazy to hope and expect that there are four judicial nominees with this kind of professional history for every one without such a history? At least two? I suspect (and fear) that the Biden team will garner considerable praise if even 50% of its judicial nominees have some criminal defense or civil rights background, but I will likely be disappointed if it is not even higher.
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