The events of the past several weeks will very likely test federal courts in unprecedented ways. People have taken to the streets to protest police brutality, and the Trump administration has threatened citizens with violence—all while the coronavirus pandemic rages and an election looms. Understanding who will be deciding the legality of the government’s actions and defining the contours of civil rights will be essential in not only evaluating the current administration of justice but also, hopefully, strengthening the judiciary in the years to come.
To help achieve that understanding, this column provides an introduction to a larger body of work that the Center for American Progress will issue in the coming months. The series of publications will examine the professional paths of the judges who currently sit on the 13 U.S. Courts of Appeals. While much has been written about the U.S. Supreme Court, much less has been detailed when it comes to these appellate courts, which—considering the very small number of cases the Supreme Court hears—are the last chance most people have to argue their case in federal courts.
There is an urgent need to increase the number of appellate judges who have spent their careers representing underserved populations and working to improve the lives of marginalized communities.
The severe lack of professional diversity on the appellate bench
Overall, there is a stark lack of professional diversity on the appellate bench. As reported by the Federal Judicial Center, only around 1 percent total of all federal appellate judges spent the majority of their careers as public defenders or legal aid attorneys. Out of the current sitting appellate judges, not one spent the majority of their career at a nonprofit civil rights organization, as Justice Thurgood Marshall did with the NAACP. There is also no federal judge who spent the majority of their career practicing at a labor union, a women’s rights organization, a child welfare organization, an immigration rights organization, or a disability rights organization.
Only one appellate judge, Judge Richard Paez on the 9th Circuit, spent the majority of his career in legal aid, and only three individuals spent the majority of their careers as federal or state public defenders.
In fact, only a handful of appellate judges have any formal work experience in nonprofit settings. For example, Justice Ruth Bader Ginsburg is joined by only two appellate judges with any time spent working for the American Civil Liberties Union. Only one sitting appellate judge spent any time at the NAACP. And fewer than 10 appellate judges appear to have spent any time employed at legal aid organizations.
In contrast, individuals who spent the majority of their careers in private practice make up more than 65 percent of the appellate bench. While private practice can involve significant public interest work—such as attorneys who work for private public interest firms as well as those who engage in pro bono work outside their standard practice area—most of those appellate judges worked in traditional, business-oriented firms that derive their revenues from business transactions and litigation representing the interests of corporations.
Appellate judges: White, male, and from private practice
As of June 1, 2020, out of the current 295 active and senior appellate judges, just more than one-quarter are women, less than 20 percent are people of color, and only 12 judges total are women of color. This profound lack of demographic diversity on the appellate bench, which has been explored in depth in other CAP reports, further highlights the urgent need to bring a variety of perspectives into the judiciary. In addition, as will be further detailed in future publications, the dominance of private practice among appellate judges appears in lockstep with this lack of demographic diversity on the judiciary. For example, while nearly 70 percent of all men on the appellate bench worked primarily in private practice, less than half of women of color on the bench have the same professional background.
The vast majority of the appellate judges not covered in the above statistics either spent their careers in other types of government service or in legal academia. A significant number also worked as local, state, and federal prosecutors. As has long been observed, this imbalance between the number of prosecutors and the number of public defenders on the bench raises concerns regarding bias given the very different nature of the two fields of work. Prosecutors work on behalf of appointed or elected government officials, while public defenders work on behalf of those accused.
The lack of professional diversity hinders the administration of justice
Identifying this lack of professional diversity on the bench isn’t a condemnation of corporate lawyers over public interest lawyers. Rather, it is a recognition that different types of lawyers will bring different types of expertise and skills to the bench that can help to improve the quality of legal opinions and depth of American jurisprudence.
The reason for this is perhaps best explained by Justice Sandra Day O’Connor in a reflection on the legacy of Justice Marshall, who, as noted above, spent almost the entirety of his career with the NAACP. In her memoir, Justice O’Connor wrote:
Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used the law to heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection.
Many attorneys from traditional private practice settings also likely engaged in pro bono legal work and other activities that were valuable in informing their understanding of the law. However, the majority of judges on the appellate bench have legal expertise that was predominantly gained through the lens of advancing the interest of businesses. Correspondingly, very few judges gained their legal expertise by evaluating statutes, guidance, legal philosophy, and precedent grounded in the perspective of representing and advocating for people facing extreme hardship—including families facing eviction, workers forced into unsafe working conditions, and people unable afford a lawyer—as well as the needs of communities affected by long-standing structural racism.
Nominating and confirming more diverse professional expertise and experience will, as Justice O’Connor explains, result in an improved jurisprudence that better recognizes a variety of people and lived experiences.
The statistics on professional diversity summarized above are only one part of a complex picture. The continuing dominance of Ivy League law school graduates among members of the judiciary as well as the recent rise in multiple clerkships among the younger members of the bench demonstrate just how narrow the path is for a promising young lawyer to someday become an appellate judge.
Future CAP publications will explore these trends as well as provide a deep dive on the legal professions represented on the bench alongside statistics on demographic diversity. For significant changes to occur, it will be essential to have a president and U.S. Senate dedicated to appointing professionally diverse judges. With this in mind, CAP will put forth a variety of policy proposals to improve the pipeline for professional diversity and challenge long-held beliefs about the so-called right type of attorney to put on the bench.
The findings above make clear that significant change is needed to improve the elitist and exclusionary nature of the judiciary. It is critical that policymakers focus on what can be done to improve the courts in order to bolster a strong, unbiased administration of the law.
*Author’s note: Unless cited otherwise, the data described above derive entirely from the Federal Judicial Center (FJC) website, and specifically the FJC’s Biographical Directory of Article III Federal Judges, 1789–present. In addition, information on attorneys’ prior practice areas was supplemented by research that included official biographies and Senate judicial confirmation questionnaires available to the public. To ensure conformity, however, all statistics noted here were found by relying on the jobs of each judge as reported by the FJC.