President Joe Biden has received much attention – and praise – for the nomination of a record number of candidates from diverse racial backgrounds. That’s great. However, less attention has been paid to another – and no less important – type of diversity: professional diversity. In short, we need more civil rights activists and public defenders in the bank and fewer prosecutors.
If you look at the current Bundesbank, you will notice certain patterns: studying at an elite university, working for commercial law firms, and time as a public prosecutor (or otherwise representing the government) are common career paths.
As one of us documented in a study for the Cato Institute – an organization looking for solutions based on the principles of individual freedom, restricted government, free markets and peace – lawyers whose formative professional experience also includes the Government attorney activities in courtrooms are heavily over-represented at the Bundesbank. Former prosecutors outnumber former defense attorneys by a ratio of 4 to 1, with those representing the government in criminal or civil proceedings outweighing those pending against the government by a ratio of 7 to 1.
President Donald Trump only exacerbated this imbalance by appointing twelve times more judges who had served solely as government officials than judges with a background in criminal defense or civil litigation on the plaintiff’s side. For example, of the 10 youngest Supreme Court justices, only two – Judge Amy Coney Barrett and Judge Ruth Bader Ginsburg – never represented the government before they became judges. And since Thurgood Marshall retired in 1991, there hasn’t been a single judge with criminal defense experience on the court.
The fact that someone worked as a prosecutor does not necessarily mean that they are biased in that direction while serving as a judge. But people bring all of their life experiences to a job, and judging is no different, which means that a person’s previous experiences are likely to influence their worldview and approach to certain cases. In the case of the cheerleading Snapchat last term, for example, Judge Brett Kavanaugh’s questions highlighted his experience as a basketball coach and understanding of the competitive nature of high school athletes.
Judges with a wider variety of professional experience would improve judicial decision-making overall. Just as companies run better when they have a workforce with different life experiences, those who are appointed to the Bundesbank for life benefit greatly from exchanging face-to-face with colleagues and reading their opinions, their personal and Professional perspectives offer new insights into the law and its practical implications.
Judge Sandra Day O’Connor wrote that Marshall, who came to court after a career as a civil rights attorney, “imparted not only his legal acumen,” “but also his life experiences, constantly urged and incited us,” not the “power of moral.” Truth ”in court proceedings. To take just one example of how overrepresentation of prosecutors may have influenced decisions, it should be noted that judges interpreted a federal anti-bribery law so that prosecutors – but only prosecutors – can pay witnesses to testify with anything everything from money and jobs to cuts ranges from imprisonment and layoffs.
Therefore, in order to ensure better reasoning, better deliberation, and better results, federal justice should reflect the professional diversity of the bar itself. It should have judges who have previously practiced criminal law as public defenders, not just prosecutors, and those with experience as civil rights attorneys, not just ex-government attorneys.
So far, Biden has nominated a number of highly qualified federal defenders and civil rights attorneys for the Bundesbank. The Senate should approve them, and we hope this is the beginning of a trend to redress the current imbalance in the courts.
A judiciary with members whose formative professional experience includes the legal profession is best equipped and best suited for the different cases
Neily is senior vice president of law at the Cato Institute and Rao is the Supreme Court and Appellate Counsel at the MacArthur Justice Center.
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