Ex-Prosecutors And The Federal Judiciary

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Professional Responsibilities & Education Practice Group, was recorded on Thursday, March 26, 2020, during a live teleforum conference call held exclusively for Federalist Society members.

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “Ex-Prosecutors and the Federal Judiciary.” My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Clark Neily, who is the Vice President for Criminal Justice at the Cato Institute. We also have Jesse Panuccio, who is a Partner at Boies Schiller Flexner and who is a former acting Associate AG at the DOJ and is currently on the Florida Supreme Court’s Judicial Nominating Committee. And our moderator today is Professor Jodi Balsam, who is an Associate Professor of Clinical Law and the Director of the Externship Program at Brooklyn Law School. After our panel gives their opening remarks, we will then open up the floor for some audience Q&A. Thank you all for sharing with us today. Jodi, the floor is yours.

 

Prof. Jodi Balsam:  Thank you for that introduction, Micah. Good afternoon, everyone. I’m delighted to join this discussion and to address our topic, the makeup of the federal judiciary and a phenomenon noted in a recent Cato study that suggests a striking lack of professional diversity on the federal bench; in particular, an excess of prosecutors.

 

      So to understand how we got here, I thought I’d start with a review of how federal judges are selected, probably familiar to most on the call. Under our Constitution, federal judges are nominated by the President, confirmed by the U.S. Senate. But the Constitution sets forth no specific formal requirements for judicial nominees, not for age, education, experience. So when a vacancy occurs, the White House has customarily sought recommendations from the U.S. senators who represent the state in which the judge would be located.

 

      These days, candidates are often first identified by the White House itself. Nominees are subject to thorough vetting by the Office of White House Counsel, by the Department of Justice’s Office of Legal Policy, the Senate Judiciary Committee, and the FBI, amongst the main vetters. This vetting develops a dossier that includes, just for starters, employment history, professional accomplishments, financial holdings, the written record of the nominee, the reputation of the nominee. The FBI conducts a background check and interviews sometimes scores of people who know the nominee from professional life, including colleagues, opposing counsel, members of local legal community, and from their personal life. And then to top it off, an ABA committee of lawyers also evaluates nominee’s professional qualifications and issues ratings.

 

      But I go into detail about this process to expose some of its inherent biases and observe that the politicization of the process in recent years has made the selectors increasingly risk averse. And that risk aversion has intensified to the point that at a 2011 law school event, Justice Ruth Bader Ginsburg was asked about her Senate confirmation hearings and remarked, “Today, my ACLU connections would probably disqualify me for the Supreme Court.” Which leads to today’s topic, “Ex-Prosecutors and the Federal Judiciary,” and a welcome opportunity to rethink what qualifies one to be a judge, and is there a value to professional diversity on the bench?

 

      So many on this call are likely familiar with Clark Neily and his book, Terms of Engagement, which argues that our federal judiciary reflexively takes the government’s side in constitutional cases. His recent Cato study perhaps provides an empirical explanation to that phenomenon. But there are always two sides to the debate, and we’re fortunate to have an alternative view offered by Jesse Panuccio, who, in his role as a member of the Judicial Nominating Commission for the Florida Supreme Court, has interviewed hundreds of candidates for the bench.

 

      So we want to start this afternoon with Clark and allow Jesse then to counter, and then offer Clark a few minutes of rebuttal. And with certainty, a lively exchange will follow. And we’ll turn to your questions at the end. Clark, I turn it over to you.

 

Clark Neily:  Well, thanks so much. Thanks so much to you and The Federalist Society for this opportunity and to our friend Jesse for being willing to participate. I think it’s an interesting topic. I think it’s a topic that reasonable minds could disagree about, but I want to start with sort of -- let’s do a gut check on this, and let’s imagine that you are an Ohio State football fan. And it turns out every time the Buckeyes play the Michigan Wolverines, four out of the seven referees are Michigan alums. And in fact, two of them are former Michigan football players. And this keeps happening year after year.

 

      I suspect most people would find this quite troubling, and -- I should say most Ohio State football fans would find this quite troubling. And if you said to them, “Hey, listen. These referees are very carefully vetted. They understand they have an obligation to be strictly neutral on the field. And I just don’t understand why you would be concerned that a significant majority or plurality of the members of this officiating crew went to school at your rival school. I just don’t get that.”

 

      Similarly, it’s almost certain that if you are a prosecutor and you are called for jury service in a criminal case that the defense counsel is going to strike you either for cause or with one of their preemptory challenges from that jury. And that’s not an irrational response because guess what? It works the exact same other way too. If you’re a criminal defense attorney, the likelihood you’re going to be seated on a criminal jury are pretty slim because that prosecutor is probably going to strike you, notwithstanding the fact that you’ll be instructed as a juror to put your prejudices aside and just follow the law and apply it to the facts that are proven in court.

 

      What we know is that people have certain pre-commitments, certain world views that inform how they process information and how they make decisions. And that’s absolutely true of federal judges. It doesn’t mean that just because you’ve had a particular professional background, you will always line up behind the side that you work for. I certainly know that’s not the case. I clerked for a distinguished federal district court judge, Royce Lamberth, who spent his whole career in government, and he has a reputation among government lawyers of all stripes as being, at best, neutral and a difficult judge to appear in front of. So I don’t in any way mean to suggest that individual judges cannot be neutral or that they will necessarily take sides.

 

      What I’m saying is that at a macro level, I think there’s a reason to be concerned about a judiciary that is so imbalanced as ours is. And just to go over the numbers really quickly, a prosecutor -- former prosecutors outnumber criminal defense attorneys on the federal judiciary about four to one, if you just look at judges who had experience in one of those two fields but not both sides. In other words, we excluded judges who have worked both as criminal defense lawyers and prosecutors. So there’s a four to one imbalance when you’re talking about just former prosecutors versus former criminal defense lawyers.

 

      We went even broader and we looked at the ratio if you include courtroom advocates for government of all kinds, so including not just prosecutors but government lawyers who advocated for the government in court in different settings, including civil settings. And we compared that to lawyers who were kind of on the other side of that equation, lawyers who instead of choosing to advocate for government for a significant part of their career, they chose to advocate against government for a significant part of their career, either as criminal defense lawyers, or like myself, as public interest lawyers, or Justice Ginsburg who worked for the ACLU. I worked for the Institute for Justice, made a conscious choice to go into court and challenge the government. If you look at those ratios, former courtroom advocates for government versus former courtroom advocates against government, the ratio is even more pronounced. It is seven to one.

 

      And I basically make two arguments here, and then I’ll conclude. My two arguments are, first, that it’s perfectly reasonable to be concerned that if you are, for example, a criminal defendant and you go into the federal system, there’s nearly a 50 percent chance -- there’s about a 44.5 percent change that the judge you appear in front of will be a former prosecutor. I think it’s perfectly reasonable for a criminal defendant to be concerned about that. And there’s only a one in sixteen chance that you’ll find yourself in front of a former criminal defense lawyer.

 

      The second point that I want to make is that I think — and I’ve talked to plenty of judges about this, and I would say every single one of them has agreed — the judiciary is a kind of intellectual ecosystem. It is an ongoing dialogue. And when you have a radical imbalance of the kind that I have described here and documented in the Cato study, it affects the nature of that conversation.

 

      Take an example. I would say there is bipartisan support, there is broadly bipartisan support for the proposition that there are significant problems with our criminal justice system. But if you just look on the federal judiciary, there actually is not a lot of support for that proposition. In fact, I would say most judges seem to believe that the criminal justice system is working pretty well. That is an astonishingly idiosyncratic view. In other words, it is a view that is held by a very small minority of people.

 

      In my experience, the vast majority of educated people believe that there are really significant problems with the criminal justice system and that it is in desperate need of reform. And you ask yourself where on earth would you find a population of people with this highly idiosyncratic view, namely that there’s not really significant problems with the criminal justice system, but who have the qualifications to be a federal judge? And the answer is you would find those people within the ranks of prosecutors. You would find those people within the ranks of former government lawyers.

 

      And if you looked outside of those ranks, in other words, if we had something closer to parity on the federal judiciary between people who used to represent the government and people who used to represent individuals against the government, I expect you’d have more diversity of view, not just on whether there are problems with our criminal justice system but what, for example, the courts were sufficiently protective of individual rights, whether they were sufficiently robust in their enforcement of structural power limitations like federalism, etc.

 

      And so at the end of the day, I think there are two things to take away about this study. First, it is really indisputable that we have a significant imbalance on the federal judiciary between former government advocates, including prosecutors, versus people whose formative professional experience was pushing back against government. And second, there really is reason to be concerned about that because it affects the nature of the intellectual culture, it affects the nature of the dialogue, and I think almost certainly ultimately affects the nature of the judicial doctrine that emerges from this institution.

 

      As in so many other things in life, I think Aristotle had it right. We would be better off somewhere closer to a golden mean. It doesn’t have to be perfect, doesn’t have to be 50-50, but the wild imbalances that we have documented in the study and discussed here today I think are quite problematic. And with that, I thank you and very much look forward to the discussion.

 

Prof. Jodi Balsam:  Thank you, Clark. Perfect way to segue to Jesse. Jesse, the floor is yours.

 

Jesse Panuccio:  Well, thank you very much, Jodi. And thanks to The Federalist Society for having me. It’s a privilege to join all of you from the solitude of our socially isolated bunkers.

 

      Let me start out by saying that Clark and I are friends, as he mentioned, and he and Cato preform some very important policy and legal work that I am a fan of. And I think he is right to focus on the makeup of our federal judiciary and its work product. For better or worse, the federal judiciary has a tremendous impact on our daily lives as Americans, and I suspect that’s only going to grow as we as a society digest the massive upheaval that will be wrought by a global pandemic, a sharp economic downturn, and $2 trillion of government spending and programs seemingly put together on a bar napkin in a matter of days.

 

      That said, my role today is to provide a rebuttal to Clark’s thesis and the proof he marshals in favor of it. And my comments will probably be a little longer than Clark’s only because he had the benefit of an already published research paper, and my rebuttals will be aired for the first time here. So as I understand it from his paper, Clark’s thesis is that, one, there are too many former government lawyers on the federal bench, and two, this is a bad thing because these judges distort the legal system with bias, presumably pro-government bias.

 

      I’ll make four broad critiques. First, the study’s methodology doesn’t allow us to draw any reliable conclusions about the professional background of the federal judiciary. Second, even on its own terms, the study shows there is plenty of professional diversity on the federal bench, or at least, not the, quote, “vast or massive” overrepresentation of former government lawyers as the study claims. Third, even if the study did show an overrepresentation of government lawyers, we are left with the question, “So what?”, which the study doesn’t really answer. And fourth, while I agree that the intellectual ecosystem of the federal judiciary is of critical importance, I respectfully submit that Clark is worried about the wrong measure of that ecosystem. Far more important is the judge’s view of the proper role of a judge, and prior experience as a government advocate tells us little about that.

 

      Let me first turn to methodology. And my first point is that the study contains too many measurement gaps to offer anything particularly telling about the professional background of the federal judiciary. To put it in terms litigators will be familiar with, I don’t think the methodology of this study passes the Daubert test. I’ll outline just a few of these issues here.

 

      First, the study says at the outset that it is concerned with, quote, “lawyers whose formative professional experiences include serving as courtroom advocates for government,” end quote. But how does one measure whether a stage in a lawyer’s career was formative? Is one year in government enough? Two? Five? What if government service was preceded, followed, or interrupted by a job lawyering against the federal government? And even if we can peg whether government service was formative, how do we know in which direction it cut? What if a lawyer’s time in government made him unsympathetic to the government and more aware of its flaws?

 

      Let me provide one real world example that comes to mind. Judge Lagoa of the Eleventh Circuit was once a federal prosecutor, but before that, she was in private practice and litigated against the federal government in the Elian Gonzalez case, a searing experience that she still talks about today. So which experience was more formative? Is she pro-government or anti-government? The study’s counting of heads methodology can’t tell us the answer. And of course, this is just one example.

 

      A real-world knowledge of government lawyers turned judges confirms that the mere fact of having litigated for the government, even as a prosecutor, tells us very little about the judge’s legal views. For example, both Justices Sotomayor and Alito served as prosecutors at the start of their careers. Yet, taking just the 2017 term as an example, these two former prosecutors agreed in only 15 percent of non-unanimous merit cases decided by the Court. Whatever formative value their common experience as prosecutors was supposed to have on their legal views, one or the other apparently didn’t get the memo.

 

      Although Clark says in his paper that, quote, “our current worldview is necessarily influenced by our personal and professional experiences,” end quote, simply checking to see whether a lawyer has ever collected a government paycheck tells us very little about a question as complex and layered as that one.

 

      The second methodological issue is that the study appears to treat all levels of government service the same. Thus, if a judge served as a state or municipal lawyer and litigated against the federal government, that judge is still counted in the pro-federal government category. Thus, for example, on my home circuit court of appeals, the Eleventh, fully half of the court has such prior experience. There are three former state solicitors general, two former state assistant attorneys general, one former state attorney general, and one former assistant county attorney. All of them likely litigated against the federal government in these roles. Yet, all of them count in the Cato study as having had experience that renders them pro-federal government.

 

      The third methodological issue is that the study codes for six prior professional experiences: prosecutors, non-criminal courtroom advocates for the government, non-litigating government lawyers, public defenders, other criminal defense attorneys, and civil liberties litigators. Any other credential is put in a catch-all for, quote, “Other Experience.” That “Other Experience” category isn’t measured in any way, but it is significant. It represents more than one-third of the federal judiciary, according to the study. So if we are interested, as Clark says, in the intellectual ecosystem of the federal judiciary, it would seem pretty important to know the backgrounds of a third of its members.

 

      The fourth methodological issue, and related to the last, is that the study proports to measure, quote, “former advocates for individuals against the government,” end quote, and includes in this group only former criminal defense attorneys and what the study calls civil liberties litigators. But to be a civil liberties litigator, apparently, one must have worked for an advocacy organization like the ACLU or the Institute for Justice. But of course, most civil rights cases are litigated by private attorneys. And as we already know, the study simply lumps those lawyers into the “Other Experience” category and then ignores them. Thus, to the extent Clark bemoans that not enough judges have experience fighting power, the study tells us very little about that. The many judges who hail from private practice may well have represented clients against the government in a whole range of noncriminal matters. But the study credits none of that as formative experience.

 

      Moreover, if a jurist previously served as both prosecutor and defense attorney or civil liberties litigator, then under the study’s methodology, he or she does not qualify as a former advocate for individuals against the government. So unfortunately, we can’t take as reliable the study’s conclusion that former government advocates outnumber former government antagonists by seven to one. Indeed, if you add back in just those who have experience on both sides, the ratio shrinks to roughly two to one. And if you conservatively add back in just half of those in the “Other” category, the ratio becomes roughly one to one, which doesn’t seem like much of an imbalance at all.

 

      The fifth methodological issue is that the study lumps trial judges and appellate judges together, yet the jobs performed by each are very different. This is important because the only evidence the study marshals in favor of the proposition that professional backgrounds influence decision making is a prior caper arguing that when judges sit on panels, as appellate judges do but district judges typically do not, professional diversity, quote, “tends to enrich judicial decision making,” end quote. But the Cato study tells us nothing about whether its purported percentages hold when disaggregated between district and appellate judges.

 

      Now, there are other issues with the counting methodology that we could discuss, but I think those five suffice to make the point that the study as structured makes it difficult to draw any solid conclusions about the makeup of the federal judiciary.

 

      So with that, let me turn to my second rebuttal point which will assume away all of the measurement issues and take the study on its own terms. Does it tell us, as the paper suggests, that, quote, “former government lawyers are vastly overrepresented in the federal judiciary. In a word, no. Table 2 of the study shows that of the 755 active judges surveyed, 467 judges, or 62 percent, have no prosecutorial experience at all, and another 65 judges, or 8.6 percent, served both as prosecutor and defense attorney before ascending to the bench. You heard that right. More than 70 percent of all active federal judges either never served as prosecutors or represented both sides before joining the bench.

 

      And if we expand that out, as Table 3 of the study does, to include as former government advocates civil litigators for the government, then of the 755 active judges surveyed, 321, or 43 percent, have no government advocacy experience at all, and another 98 judges, or 13 percent, served as both government advocate and antagonist before ascending to the bench. You heard that right. More than half of all active federal judges either never served as a courtroom advocate for the government or represented both sides before joining the bench.

 

      The title of the Cato study is, quote, “Are a Disproportionate Number of Federal Judges Former Government Advocates?”, end quote. I’m not sure what a proportionate number would be. The benchmark isn’t made clear. But when the study shows on its own terms that a supermajority of judges are not former prosecutors and majority are not former government advocates, I’d say we have a pretty conclusive answer.

     

      Let me turn then to my third and final critique. So what? Even if the study had no methodological issues, and even if that methodology showed an overrepresentation of former government lawyers — and again, I’ll stress that I think it does neither — but even if it did these things, the critical question would be why that matters. Indeed, the paper’s last section is helpfully entitled “Why It Matters.” And the paper tells us it matters because, quote, “because of the potential for bias created by an adjudicator’s past experiences.” But the study doesn’t actually measure whether adjudicators with past experience as government advocates tend to adjudicate with a bias for government in any particular way or another. Call this the fifth and most important methodological issue.

 

      The study has no dependent variable, no regression analysis showing statistically significant correlation to outcomes, and thus offers no particular proof of any thesis. It simply codes for career experience and stops there. The study otherwise offers only a few paragraphs of hypotheticals and speculations, an ipse dixit quote from an advocacy organization that professional diversity, quote, “enriches judicial decision making,” end quote, and a citation to a prior paper that only studies, as I mentioned earlier, appellate decision making.

 

      But even if we put aside the lack of statistical correlation to outcomes, it’s important to note that the thesis of the study, the “So what?”, is at bottom nearly a restatement of the legal realist view of the judiciary and the law. It’s Holmes all over again. “The life of the law has not been logic: it has been experience.” I would wager that most of The Federalist Society members listening to this debate long ago rejected that view and take the position that the law is or should be objective, that it has correct answers, and that judges can identify those objectively correct answers by using sound judicial methods, regardless of their personal views.

     

      Indeed, I think if Clark is right, if a judge’s prior professional experience shapes how he or she rules on a case, then we are doomed because at least at the district court level, justice is not dispensed in gross. Each litigant is entitled to an impartial jurist, and no matter the overall professional diversity or intellectual ecosystem of the bench, each individual litigant only gets that one judge who, in Clark’s view, will likely be biased in one direction or the other based on past experience.

 

      This brings me to my fourth point — and this is actually my final point, not the last one, my final rebuttal point — which is that Clark is focusing on the right issue, the intellectual ecosystem of our federal courts, but I think, respectfully, the wrong measure. I think that far more important than a judge’s professional background is the judge’s view of his or her proper role within our system of government. The great divide in our federal courts is not between former government advocates and former government antagonists. It’s between those who believe federal judges are agents of societal change and those who believe federal judges are agents of legal text.

 

      Now, perhaps Clark will say in response that, “Well, that’s important. The overall judicial system is still weighted in favor of the government and against individuals.” We could have a debate about whether that’s true, but to the extent it is, the critique that our criminal justice system is too harsh or our federal agencies are too powerful is not principally a critique of the federal judiciary. It’s a critique of Congress who writes the laws. And if Clark’s position is that the modern Congress is an enfeebled, dilatory, irresponsible, and feckless organ of government, well, then I think we would be in complete agreement.

 

      Let me close with a final affirmative point, namely it’s a good thing we have former federal prosecutors and government lawyers on the federal bench. First, it’s useful to have jurists who have firsthand knowledge of how government agencies work. They are, frankly, better able to see through various government tactics and arguments. Second, because it’s very competitive to get hired as an AUSA, federal prosecutors tend to have strong academic credentials and legal skills, and in general, better lawyers make better judges. Third, government lawyers receive excellent courtroom training with far more trial experience than the average private practice attorney, so they take the bench ready to run a courtroom on day one.

 

      Fourth, because of government background checks and prohibitions on political activity, former prosecutors tend to have very few personal history issues or political entanglements when they are nominated, and they thus often receive bipartisan support, all of which helps enhance public confidence in the judiciary. Fifth, federal prosecutors often spend their careers and sacrifice greater private sector financial awards getting some very bad people off the streets. There’s nothing wrong with rewarding this service with elevation to the bench.

 

      So even putting aside everything else, there are many good reasons why we want former government attorneys on the bench. With that, I’m happy to take questions.

 

Prof. Jodi Balsam:  Okay, so I’m going to turn this back over to Clark for some rebuttal. But Clark, I’d like to ask you to focus your comments at some point on Jesse’s point about why this does or doesn’t matter. That is, how does diversity of perspective and especially of professional experience, why is that essential to equal justice under the law, and would that principle apply equally to diversity in terms of other background experience? That is, as Justice Sotomayor once put it, the value of a wise Latina woman on the bench. Is the solution to the problem, Clark, that you’ve identified a slippery slope to judicial appointment quotas across other dimensions such as race, gender, or ethnicity?

 

Clark Neily:  Yeah, I appreciate that. And I have to say, Jesse, what an absolutely spectacular job. If I ever find myself in legal trouble, which I don’t, I certainly will plan to give you a call because I think that was as good a job as you could do with a losing case, and I’m very impressed.

 

[Laughter]

 

      Let me say a few things in response. Let’s take the basic point first. There’s no serious dispute that there’s a significant imbalance on the center of judiciary between people who are advocates for government and people who are advocates for individuals against government. Now, we can quibble over the percentages. We can discuss how to chop it up methodologically, and so forth.

 

      And by the way, Jesse, when you said that simply being -- whether you collected a paycheck from the government, actually, we were more precise than that. We didn’t just look at all government lawyers. We could have done that, and boy, would that have changed the percentages even more. But we actually limited it, and we only looked at people who were courtroom advocates for government, which is a small subset of government lawyers, as you know.

 

      And there’s a reason why we did that. I was an advocate for most of my career. I was not just any advocate. I was an advocate at a public interest law firm at the Institute for Justice. And if you think for a minute that that background would not be relevant to my anticipated reasoning and approach to cases as a judge, I don't know what to tell you. I’d tell you maybe I’ve got a bridge to sell you because it absolutely would be relevant for a couple of reason, first because there’s a self-selection bias.

 

      I went to work for a public interest organization challenging the government on purpose. I did it because I believe there are very significant problems in our country having to do with the way that the government exercises its power, and I made a decision. So that tells you something about me. And it also tells you something about me that I did not choose to become a prosecutor, that I did not choose to spend a significant amount of time in government service. And again, if you think that’s just irrelevant to note, I would say that’s absolutely wrong. You would absolutely want to know.

 

      And it’s not just because of the self-selection bias. It’s also because of the way that that work shapes your worldview. When you are an advocate in court, it is very difficult, especially when you’re a cause lawyer, whether your cause is the government or your cause is litigating against the government, it’s very difficult not to come to embrace and embody the worldview of the client that you represent, of the cause that you represent.

 

      And it affects the way you see things. It affects how reliable we think police officers are as witnesses. It affects what you think about legislative motives and sometimes bureaucratic motives. So I think it is very clear that both in terms of self-selection bias and in terms of worldview shaping, what you did for a living, what you chose to do for a living, and the environment that you are in, and your fundamental mindset as an advocate absolutely has bearing.

 

      Now, I was very clear up front that it doesn’t translate one to one. You’re absolutely right. I think probably no one on the Supreme Court has been better on criminal justice issues in recent years than Justice Sotomayor, and she was a former prosecutor. So I never said that this was a one to one translation. All I said was that when you have an institution that has a significant imbalance along these lines in terms of prior professional experience, then I’m concerned about that.

 

      Now, what is the extent of the imbalance? There are so many different ways. You raised some methodological concerns about the study, and you know what, I will say to some extent fair enough. It is very, very difficult to measure -- if you’re asking the question, “Okay, what was a person’s prior professional experience?”, you have to make so many choices and so many judgements. Do you cut off the amount of time in government service at two years or three years? We struggled with that. We chose two years. And so forth and so on.

 

      What we have to avoid, though, I think, is the situation where somebody challenging a study like this gets to critique it by saying, “Unless they drilled down to the level of granularity that I think they should have, then I’m not going to credit anything this study says.” I think that’s not reasonable, and I think, again, that it is indisputable that we have a significant imbalance on the federal judiciary between prosecutors and defense attorneys, between former government advocates and people who used to challenge government.

 

      And I want to conclude just by saying that I think it’s incredibly clear that that mix is going to influence both the substance of the conversation within that institution and also the doctrine that emerges from it. Let me give you just one more example. I think that the Supreme Court’s -- like many Federalist Society members, I find the Supreme Court’s Commerce Clause doctrine absolutely preposterous and disrespectful to the text, history, and meaning of the Constitution.

 

      I think Gonzales v. Raich, which is the case where the Supreme Court held that the federal commerce power authorizes the federal government to criminalize the purely local, purely noncommercial distribution of a plant is an absolutely preposterous decision. And I would not be able to apply that decision. If I were, for example, working in the government, I could not bring myself to litigate a case where I had to defend or had to advance such a ridiculous interpretation of the Constitution, ridiculous in my own eyes.

 

      But I would have to be able to do that. I would have to be able to do that, chances are, if I were going to be a government advocate, at least in some parts of government. And there’s a reason why I chose to be on the other side of that equation.

 

      And again, if you want to find a large concentration of people who have this kind of, I would say, fundamentally idiosyncratic view of the Constitution and of public policy, i.e., there are no really significant problems in our criminal justice system, and it’s reasonable to empower the federal government to criminalize the purely local, noncommercial distribution of a plant under the Commerce Clause, then where are you going to look to tap into that, to find people with such an idiosyncratic worldview as compared to what I would call maybe the general population world view? Well, you’re going to look to a population of former government advocates because they’ve been working in an environment where they use those doctrines, where they don’t particularly question the fundamental legitimacy of the doctrinal and legal structures that they bring to bear every day.

 

      And I’m not saying, by the way, that prosecutors shouldn’t be judges. They absolutely should be for all of the reasons that Jesse articulated. My only point is that people on the other side of that equation, former public interest lawyers, former criminal defense lawyers, they have a lot of things to bring to the table as well. And the fact that they are so systematically passed over and disregarded to the point where they make up such a small proportion of federal judiciary, I think there’s a real loss to the overall culture and intellectual output of the judiciary. Thank you.

 

Prof. Jodi Balsam:  Thanks to that rebuttal, Clark. And Jesse, I want to turn to you with a question that draws from some of what Clark just said. So one indisputable data point from his study is that there are remarkably few former public defenders or civil rights lawyers on the federal bench. In fact, the last justice to have experience like that, the last Supreme Court justice to have experience like that was Thurgood Marshall, who founded the NAACP Legal Defense Fund. So he retired in 1991, and since then, there’s a real dearth of people with that sort of background on the federal bench.

 

      I want to point to the ways that professional diversity might be relevant to judicial decision making to push back a little against your point, Jesse, that we expect our judges to be entirely neutral and impartial. So many points in the course of a litigation, a judge might have to decide whether a claim is so-called plausible, or whether a witness is credible, or whether a litigant in a tort suit acted reasonably. Aren’t judgements for which some degree of professional or background diversity is relevant?

 

Jesse Panuccio:  Okay. Well, I think I’ll respond to both those questions, and I also want to make three quick points, if I can have the leeway to just respond to what Clark said. But let me just start with your question --

 

Prof. Jodi Balsam:  -- Absolutely.

 

Jesse Panuccio:  -- which you say it’s indisputable that there are not enough public defenders on the bench, and I think you also said people with civil rights experience. And I would say it’s very disputable. While there may be more former prosecutors than former public defenders, as I said in my opening rebuttal, most of the judges who get -- or a significant portion of the judges, one-third, who were coded in the study were simply coded as “Other,” and we have no idea what they did. Many of those judges were in private practice. They may have squared up against the government in significant civil enforcement cases or sued the government for takings or anything else, and a whole other range of folks who are lumped into the former pro-government lawyers.

 

      Again, half of the Eleventh Circuit Court of appeals served in state government and probably sued the government. And if you asked them, they’d probably say they sued the federal government to vindicate the civil rights of some of their citizens. Those people are not recognized as having civil rights. So if the question is, well, a civil rights lawyer is really someone who works for the ACLU or the Cato Institute or the Institute for Justice, well, that is a vanishingly few number of lawyers. And so I would say yeah, there’s not going to be a lot of those people on the bench. But those people don’t represent the universe of folks who engage in civil rights work. And I think that the people who do and do it for private law firms would probably take some umbrage at that characterization that they have sort of a monopoly on that kind of work.

 

      And I went through the numbers. And this answers one of Clark’s points. The number are this: 70 percent, according to the studies on numbers of the federal judiciary, never served as a state or federal prosecutor. So that’s a supermajority. But if you want to expand it out to all courtroom advocates for the government at any level, 56 percent of the federal judiciary, 56 percent of 755 judges, never served as a courtroom advocate for the government.

 

      So I’ll take the study at its own terms, put aside all the other measurements laws. It does not prove the thesis. The point about, well, aren’t judges inherently biased because all people are inherently biased? Well, if you believe that, I guess the question is this: What is to be done about it? And I’ll go back to the point I made that most of the federal judiciary is made up of district court judges. District court judges sit alone. And for the average person who interacts with the federal judiciary, they’re only going to interact with it once. So it’s not as if they’re playing a law of averages here, and they can say, “Well, I’ve got a biased judge for the defense this time, but I’ll get a pro-prosecution judge next time and it’ll all work out.”

 

      Justice isn’t dispensed in gross. It’s dispensed to each individual litigant. So if we believe that judges are inherently biased based on their prior experience, I guess we can’t have single individual district court judges anymore. We’re going to have to have everything heard by a panel, and we’re going to have to make sure that those panels are properly balanced among professional experience or else we can’t have a fair justice system.

 

      I reject that theory. I think, to the best of their ability, people and lawyers especially who are well trained are able to put aside their prior experience and personal views and come to objective answers about the law. And I’ll leave it there.

 

Prof. Jodi Balsam:  Thank you for that. We’d like to open up the conversation to folks on the phone.

 

Wesley Hodges:  We’ll go ahead and go to our first question.

 

John Shu:  This is John Shu in California under mandatory stay at home, but not so bad on the beach. Thank you to Professor Balsam, Clark, and Jesse. Full disclosure, I was also a law clerk in the Eleventh Circuit in Florida.

 

      With respect to this question, we looked at it at Pepperdine, not perhaps from a slightly different angle, and not to the same extent as Cato. Would Clark and Jesse please address the issue the AUSA and especially the U.S. attorney’s position is often a springboard to further political or judicial advancement, and not so much from the public defender side, especially on the local level. So there’s a factor that those people who worked in government, especially at main justice or as a U.S. attorney, that they have the relationships with a particular administration to be known and to have the relationships to be nominated, eventually, over those of a public defender.

 

      Also, as Jesse mentioned, it’s often very difficult to become an AUSA, and especially a U.S. attorney, having to go through all the various vettings, and in the U.S. attorney context, a confirmation process. I would be interested to hear your feelings on the relationship aspect of it as opposed to the actual substance of prior litigation experience.

 

Clark Neily:  This is Clark. Thanks so much for the question, and I don’t have a long answer to it. I think you could probably give a long answer to it, but I just want to make a quick and short observation and it’s this: As we know, just even being nominated to be a federal judge is a really big deal, it’s a major accomplishment, it’s a very difficult thing to achieve. But there does probably -- almost certainly, you need to have at least some political connection. You need to have come to the attention either of the senators in your state or to the group of people who are charged with making the first cut and coming up with a list of names that will be presented to the relevant decision maker.

 

      And I think there’s a real concern here because those people have a lot of stake in not coming up with a list of nominees that will be in any way embarrassing. And I’m not saying never, I’m just saying in general, you want to be sure that you’re recommending to either your senators or to the President people who you feel very comfortable are not going to try to buck the system. So if it’s a Republican administration, you want to be proposing people to the President or to those Republican senators who are not, for example, going to go in there and impede major Republican initiatives or policies. Same thing on the other side of the equation.

 

      Now, that’s fine if there are no really significant problems and we don’t want a judiciary giving a lot of pushback, but I don’t see it that way. I’m a former libertarian litigator, so I recognize maybe I’m a little bit iconoclastic on this point, but essentially, to make it through the nomination and confirmation process, you have to be somebody who doesn’t present a lot of threat or concern that you’ll be a significant boat rocker, and specifically not a boat rocker of your own -- of the policies of the party that was responsible for nominating you.

 

      And if it turns out we have a system that is in need of lots of boat rocking, which I think we are, then presumably, you’re going to have -- you’re probably not going to end up on that list, and you’re probably not going to make it through a confirmation hearing if you are testifying candidly in front of the Senate and telling them that, for example, 80 percent of what the federal government does is unconstitutional because it’s not within any plausible reading of enumerated powers. That’s probably a ticket to a really short confirmation hearing.

 

Jesse Panuccio:  In terms of the process, it is certainly true, as with all things in life, that who you know matters. And the people doing the selection, at least from the executive side, are White House lawyers and DOJ lawyers. And so if you’ve been a federal prosecutor and come to the attention of some of those people, that can be helpful. But I should note, and this goes back to something Clark said earlier about how cause lawyers aren’t getting selected, I think I would resist the notion that federal prosecutors are cause lawyers or view their job that way. I think they’re lawyers with a client that happens to be the government.

 

      And I think -- I haven’t done a study on this, but I’ll just speculate that if you did a study in the turnover of federal prosecutors into other jobs versus public defenders and criminal defense attorneys, there is greater turn among prosecutors, indicating that they view their work as less of a life mission and cause than perhaps those who work on the defense side. So I think that’s a point about the diversity of experience some of these folks might have and why they might be more attractive to those who are selecting judges.

 

Wesley Hodges:  All right. We have another question in the queue. We’ll go ahead and move to that question.

 

Robert Efroymson:  Hi, my name is Robert Efroymson. I’m also locked down in Santa Fe, New Mexico, both the CDC and the New Mexico Department of Health told me. At any rate, 30 years ago -- so this is a little out of date and also not federal. I was a local prosecutor in Brooklyn, New York, and the judge I called counter in front of  was a former Manhattan prosecutor. And certainly the sense that we had was not that he had any excessive bending towards our way of seeing things.

 

      I just wonder whether you actually had looked at that to see whether there is any sense in which former prosecutors -- I sometimes felt they were even harder on us because they knew, or they thought they knew how the job was supposed to be done, and if we didn’t do it the way they thought, then they would come down even harder on us. So that goes, I think, to the point that was being made that the connection between the experience and the way someone is going to be on the bench is not as clear as the study would seem to have assumed it would be.

 

Clark Neily:  Right. I appreciate that question. The short answer is I don't know how you would do that study. It may be possible, but I certainly don’t possess social science background to conduct such a study, and I’m not even confident that such a study could be designed in a way to where the results would be at all reliable. And I would say this: I’m reminded somewhat of this argument that when I was younger and I tried to take up golf, people would say -- I’m left-handed, and people will tell you, “Oh, you should play with a right-handed set of clubs because it’s actually better that way. It plays to your body’s strengths better.” But you’ll notice that right-handed people almost never play with a left-handed set of clubs.

 

      And so it’s kind of similar here. I’ve heard this many times before. “In my time, the judges who were hardest on us prosecutors were former prosecutors.” And you know what, anecdotally, I’m sure that does happen from time to time. As I mentioned, I clerked for Judge Royce Lamberth who was a former government lawyer, and he was absolutely fair, and if anything, maybe had a reputation for being a little hard on government lawyers. I am the first one to agree that that can happen.

 

      My concern is, though, that I don’t think anybody believes that it actually really plays out that way at the macro level. And I think we could check that, for example, by saying, okay, well, let’s take one of the circuits. I don’t care which one. Let’s have a moratorium on former government advocates until we’ve got the proportion in that circuit so that it is the mirror opposite of what we see throughout the rest of the country.

 

      In other words, let’s keep putting public interest lawyers and criminal defense lawyers on the judiciary in that circuit until we get the ratios exactly reversed, and then we can have a natural experiment and see if that circuit actually looks just like all the other circuits. I don’t think we’ll ever get there, but I would take every single dollar out of my retirement account and bet that that circuit does not end up looking just like the rest of the formal judiciary.

 

Jesse Panuccio:  Well, I guess we could do that experiment just in our heads. Let’s take the Supreme Court. Everybody who’s worked for the government is out. I think we’d be left with one or two justices, and yet we typically have a 5-4 court on criminal justice issues. So again, I think it’s just hard to know which way prior experience alone is going to cut.

 

      As I said, I think the much more relevant factor is how does the judge actually think about the law? And there are ways to get to that. The way to get to that is watch their output over time, but also that’s part of what the interview process is about when you’re selecting judges. And I can tell you sometimes these things -- as was mentioned at the outset, I’ve sat in on hundreds, hundreds of judicial interviews. And these things cut in very interesting ways sometimes.

 

      I recall when I first was the General Council to the Governor of Florida in 2011, a Republican, conservative governor who was elected. One of the first people he put on the bench, a person who’s now on the federal bench, was a career criminal defense lawyer who represented murderers and cop killers. But in the end, the governor felt that his approach to the law was exactly what he was looking for, and he’s gone on to a very distinguished judicial career. So you just don’t know.

 

      And to the extent Clark says, “Well, we can only think about this anecdotally. We can’t do a study,” I guess the question is then what are we really talking about? If you can’t prove something, then should we be making decisions based on it?

 

      And the last thing I’ll say is, actually, I think you can do some social science research on this if you wanted to. I’m dubious of studies that code decision making as left or right or pro-government or anti-government because every case stands on its own merits. But plenty of people have attempted that type of judicial coding, decision coding over time. And if you wanted to, you could take the Cato study, you could make the backgrounds of the judges the independent variable, and you could make their decisions the dependent variable. But that just simply hasn’t been done in this case, and so it’s hard to draw any conclusion.

 

Clark Neily:  Well, you’ve certainly conveyed that you have no concerns about the way the justice system is currently structured. I don’t share that perspective. And I think there would be extraordinary pushback, particularly within law enforcement communities and from the Department of Justice at any proposal to radically overhaul either a fraction of the federal judiciary or the entire federal judiciary so that we perfectly reverse the ratios. If we did that, people would put their money where their mouth is.

 

      And I think the odds that everybody involved would just sort of sit by and say, “Yeah, that sounds fine. I don’t really care what the ratios are. If we want to overstock the courts with public defenders and former ACLU and IJ lawyers, yeah, I don’t care.” And think it is extraordinarily unlikely that that would be the response, but you might be right. Maybe it would be.

 

Jesse Panuccio:  Well, I think there’s an easy answer. If there are public defenders who don’t view themselves as cause lawyers but view themselves as having a client and are simply good lawyers who can argue both sides, they can do what prosecutors often do. They can stop being public defenders and they can go be prosecutors for a while. And if we think that only prosecutors get on the bench because they have the connections, I suppose that would give them the avenue to do that.

 

      But they don’t tend to do that, and maybe we need to ask why they don’t tend to do that. Is there a difference between the type of person who’s drawn to be a lawyer for the ACLU or for IJ or to be a public defender versus other types of lawyers? And then the question will be do we really want to put people on the bench who have identified themselves openly for their whole career not as having clients and a dispassionate view of the law but litigating for a cause? Do we want to openly identify judges as representing a cause on the bench? I think that would be bad for the system overall.

 

Clark Neily:  Well, sounds like we should have had you on the call.

 

Wesley Hodges:  All right, we’ll go ahead and move to our next caller.

 

Michael Kielsky:  I wanted to ask about the concept of implicit bias. This is Michael Kielsky in Arizona, also on lockdown. It has occurred to me, and some of the discussion has touched on that, which is the idea that somebody who, like me, spends their time defending the innocent against the unjust accusations of the government, could I do the job of a prosecutor? And my answer would be objectively absolutely yes, but I don’t think I would last very long because I would get fired because I would be making decisions that I wish a lot of prosecutors I run into on a regular basis would do and don’t do.

 

      So the ultimate concept is I think there is implicit bias, and I think there is this idea that if you believe that those agents of government are less fallible than the rest of us, and that is part of your core being, then I think you will -- that implicit bias, if you get on the bench, could be reflected there rather than everybody is a human being and everybody’s potentially equally fallible.

 

Jesse Panuccio:  Well, let me take a stab at this one first if I could, Clark. So I’ll go back to something I said which is let’s not debate whether there is or is not implicit bias and the science behind it. Let’s just stipulate that such bias exists. So the question I would have for the caller is do you believe that that only runs in one direction? In other words, only people who have had government experience or been former prosecutors have implicit bias, and those who have served as cause lawyers at an organization or as public defenders do not.

 

      If you believe that, I guess my question would be why or why not? And if you don’t believe that and you say it’s inherent in all human beings, then the question is what do you do about it, at least in terms of judicial selection because as I’ve said now twice, for any individual litigant, it doesn’t matter what the overall ecosystem is. It matters what the judge in front of them thinks. And if every judge is biased by his or her experience, then I guess there’s no solution to this problem. We’re simply going to have biased outcomes in every case.

 

Clark Neily:  Let me quickly add that certainly is not my point. I don't know how many more times or any more ways I can try to clarify that I don’t think that every judge is biased because of their prior experiences. And let me say every single prosecutor in the world understands the concept of implicit bias when they are picking a jury. I bet there are very few prosecutors that never exercised a preemptory challenge. And keep in mind, you only need your preemptory challenges for things like implicit bias because if there’s an actual cause to have somebody kicked off that jury, if they admit that they can’t be fair-minded and, say, have some relationship to one of the parties, they’re going to be eliminated for cause.

 

      But if it were -- if people really did act like there was no such thing as implicit bias, what we would see is both prosecutors and criminal defense attorneys declining to exercise their preemptory challenges, and they don’t. They understand that there is such a thing as implicit bias, and they go to extraordinary lengths to try to remove people from jury pools because of their personal characteristics, including emphatically their professional background. They feel that they’re concerned that those biases and those experiences would translate into a particular mindset when they sit on that jury. There’s absolutely no reason in my judgement to suppose that that intuition that we all have that there are certain people who may just inherently be even unconsciously biased if they end up on a jury that all of those dynamics completely fall away and we shouldn’t be concerned about any of that when we’re talking about a judiciary as opposed to a jury.

 

      So do prosecutors believe there’s such a thing as implicit bias? They certainly do, and you can see it reflected in their real-world actions when it comes to jury selection. And I just don’t think it’s credible to say that all of those perfectly valid, real-world concerns could somehow just completely just drop out when we’re talking about the composition of a judiciary instead of a jury.

 

Jesse Panuccio:  That is a very valid point. I think the answer to it that I would provide is that judges are not jurors. Jurors are laypeople who maybe serve once or twice in their lives and are not trained in the law. The reason we have law in society is to channel decision making in a way that as best as possible eliminates bias, puts procedures and rules around what a judge can and cannot do, and what the government can and cannot do.

 

      The reason we send people to law school for three years and then have them train in places like law firms and prosecutor’s offices and PD offices is so that they learn the qualities of objectivity and analysis that undergird our entire legal system. And so as best we can, being imperfect humans who have biases and experiences, we try to channel that through the imperfect but, I think, useful and good systems we have in our legal culture to eliminate some of those things. And I don't know that we could come to a better answer than that simply by altering the way we select our judges.

 

Wesley Hodges:  All right, we have one last question in the queue. So since we have about a  minute left here, we’ll just take that one question and then wrap up today.

 

Jack Park:  Thanks to everybody. This is Jack Park in Gainesville, Georgia. Just a quick question. If there is an overbalance in favor of prosecutors, is it attributable to nominations and confirmations coming from Democrat or Republican administrations?

 

Clark Neily:  I’ll answer that question. The short answer is we didn’t try to measure that, but just looking, for example, at studies that other people have done of a much more limited nature, it appears that the Obama nominees were somewhat -- reflected somewhat less of a pattern compared to the overall results, but I would be very hesitant to project and say whether that’s -- if we were able to study this and associate it with which party was in power when the judge was nominated, my suspicion is that we might see some relatively small variations, but I would be shocked, based on what we found, if we saw any significant variations.

 

      This significantly imbalanced ratio between former government advocates and former individual against government advocates holds true throughout history as best we could tell going back as far as we went. And we went basically back -- we didn’t count senior status judges. So we went back as far as the current non-senior -- oldest current non-senior nominees. So anyway, sorry, that was a long answer to a short question. The answer is no, not as far as we could tell. But we didn’t actually try to measure that.

 

Jesse Panuccio:  Even if you tried, it could be very difficult because of course -- let’s just take the district courts. Yes, the President has the ultimate nomination authority, but as we all know, at the district court level, it is very much the case that the senators have tremendous input. And so you would need to know the parties of the senators at the time of nomination but also what deals senators have struck within the state; for example, if you have one Democrat and one Republican. So I suspect it would be an extraordinarily difficult thing to measure in any kind of reliable way.

 

Prof. Jodi Balsam:  That concludes our question and answer. And I wanted to thank Clark and Jesse for an engaging and provocative discussion. And I would just offer both of you a half a minute or so to give us some closing remarks, sum up our conversation this afternoon. Clark, why don’t you go ahead?

 

Clark Neily:  Well, I appreciate that. I want to thank you again, The Federalist Society, and Jesse. This has really been, I think, one of the most thought provoking and interesting discussions that I’ve been part of, and that really is the result of the hard work that Jesse obviously put into his preparation, and also you, Jodi. So thank you for that.

 

      I’m just going to end where I began and just say this: Just again, imagine that you’re a football fan, and your school is playing its major rival. And you show up and it turns out that a substantial plurality or even a majority of the officiating crew are alumni of your rival school. Now, they are trained, they’re applying a rulebook that’s pretty black and white, they have a professional obligation to remain neutral, etc., etc. Let me just ask you how persuasive all of that would be when you look down on the field and you see a bunch of referees wearing black and white stripes, most of whom went to the University of Michigan, and your Buckeyes are about to take the field and go play a game in front of that officiating crew.

 

      Are you super reassured about the fact that they’re applying black and white rules, they have training and a professional obligation to remain neutral? I suspect not. I suspect you’d rather have an officiating crew that was drawn more randomly from the overall population of available referees and not so heavily and suspiciously concentrated with people who used to go to the school that’s participating in the game that they’re about to officiate. Same thing with the federal judiciary.

 

Prof. Jodi Balsam:  Jesse, last word.

 

Jesse Panuccio:  Thanks very much. And Clark, likewise. Thanks for, as always, very engaging and insightful ideas. It’s a pleasure to be able to debate this with you. And Jodi, appreciate your facilitating the conversation.

 

      And I guess I’ll just close with a response to that which is to say it’s a good thing that we treat law more seriously than we treat our allegiances to college football teams. And my whole point is this is why lawyers get trained. It is to be able to say that their job and the role of judges is not to root for an outcome the way we root for an outcome in a football game but to take the role of a judge and the role of law in our society much more seriously than that.

 

Wesley Hodges:  All right. Well, on behalf of The Federalist Society, I would like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.