Constitutional Law General

A Bench Light On Defense

Last fall, Supreme Court Justice Sonia Sotomayor spoke about the lack of diversity on the federal bench including the Supreme Court. She wasn’t talking just about the glass ceiling on women (thought the current Court has three women on its bench)  she was talking about the lack of diversity in legal experience. She noted that most  federal judges come from big firms or the US Attorneys Office. And that the Supreme Court is usually selected from the Federal Bench. Speaking to students at American University’s Washington School of Law, she stated:

“We’re missing a huge amount of diversity on the bench,and not just racial or gender diversity.” It bothers her that “judges rarely come to the bench from the defense bar, from civil rights experience, or from solo or small practices.”   Now she added that it does not mean that the Court or judiciary would necessarily decide cases differently if they had such experience in their midst stating:  “None of us speak in one voice.Instead, enabling the public to see their own backgrounds reflected in the judiciary would give the public more confidence that they are getting a fair hearing.”   And that’s a good point. After all Earl Warren, one of the most progressive justices in the area of criminal defense was a long time  California prosecutor. He has stated that it was seeing the injustices of the criminal justice system up close that led him to have such a pro-rights philosophy.  But justices don’t live in a vacuum and their personal  experiences and philosophy have to in some way shape their opinion on the law, its purpose and its reach.  Many judges had prosecutorial experience – including Sotomayor  who was a Manhattan Assistant District Attorney and an Assistant United States Attorney – so wouldn’t the bench be more balanced with a criminal defense practitioner on there from time to time?  


US Supreme Court
US Supreme Court

Even if the criminal defense lawyer only represented private, well-moneyed clients, they are there in the trenches awaiting their cases to be called; trading war stories with fellow counsel; and seeing first-hand how the indigent  are treated by the court system. That experience has to effect their thinking and eventually their judicial philosophy. Yes, few judges have intellectual property experience and the US Supreme Court decides cases in those areas all the time. But those cases are largely rooted in a straight analysis of the law and application of the facts. In criminal cases, many times judges have to view things from the perspective of the defendant or the complainant or the police officer. Was there “reasonable suspicion?” “Would a reasonable person believe he was in custody?” “Did the defendant receive effective assistance of counsel?”  These questions delve into grey areas where some practical experience would be vital. Having the voice of a seasoned criminal defense practitioner would be a great addition to the conversation when it comes time to render an opinion.  


So I looked into the legal experience of all the current US Supreme Court judges. Four of the nine have prosecutorial experience as either a district attorney (Sotomayor) or an US Attorney General (Breyer & Alito) or a State Attorney General (Thomas). None ever practiced criminal defense or even worked in a small firm. In fact two others had federal government experience (Roberts & Kagan – US Solicitor General’s Office); and the three others were predominantly law professors (Scalia, Ginsburg  & Kennedy).(though Ginsburg did champion civil rights causes as counsel to the ACLU).  So I decided to look all the way back, to all the judges that ever sat on the High Court. Very few of the 103 or so prior justices had any criminal experience. The first one was John Carton of Tennessee who served from 1837-1865. The last one was Thurgood Marshall who handled more than his share of death penalty cases. After Carton come Abraham Lincoln’s appointments. Of the five justices he appointed during his Presidency, four had criminal defense experience, including his former law partner David Davis (1862-1877) and Salmon P. Chase (1864-1873) who also was Secretary of the Treasury and regularly defended fugitive slaves in the courtroom. So it seems that electing Presidents with criminal defense experience might be the ticket to getting judges with this experience on the Federal bench.  After Lincoln, Teddy Roosevelt is the next to appoint someone with criminal defense experience – William Day (1903-1922).  Then no one until Marshall (1967-1991) and none since!  It should be pointed out that along the way many prosecutors have risen to the Supreme Court.  Below is a chart setting forth all the justices, their terms and their main area of legal experience. It is to be hoped that Sotomayor’s words are heard by President Obama or whomever is the next president to seat a Supreme Court Justice; Obama should also nominate several for the current Federal judicial vacancies.  Let’s add some diversity to the Court and get an experienced criminal defense practitioner on the bench – there are many out there who would make remarkable Supreme Court judges.

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