Though his tenure has been nothing if not divisive, it seems that everyone agrees that President Donald Trump has enjoyed success on one front: quickly and decisively reshaping the federal judiciary. Indeed, he set a record for the most federal appellate judges confirmed in the first year of a presidency. Of course, political opponents, well-respected scholars, and journalists have raised serious concerns about the President’s nominees. To start, the collection of nominees severely underrepresents women, despite the increasing percentage of women in the legal profession. As for racial diversity? Forget it. Two weeks ago, USA Today pointed out that 92% of the judicial nominees are white. There have also been vetting concerns—Trump was forced to withdraw two nominations—and well-founded concerns with the discriminatory views several nominees evidently harbor. For all of this attention given to President Trump’s judicial nominees and their confirmations, one central observation is missing: of those nominees with experience in criminal cases, they have exclusively served as prosecutors. None of the judges confirmed to this point has any significant experience representing poor people charged with crimes. Trump—continuing a long-running trend—is putting the architects of our nation’s mass incarceration crisis in charge of the federal courts.
A brief look at the biographies of the judges who have thus far been confirmed tells the tale. Trump’s most-prized confirmation thus far, U.S. Supreme Court Justice Neil Gorsuch, spent a substantial amount of his time in the DOJ’s Civil Division defending the Bush administration’s anti-terrorism policies and promoting the use of military tribunals for Guantanamo Bay’s detainees. Of the 14 appellate judges confirmed to this point, half have had experience working on the prosecution side. (Judges Amul Thapar and Stephanos Bibas were federal prosecutors, while several other judges worked as Solicitors General or employees for various Attorneys General, presumably focused on appellate issues.) Of the 10 district court judges confirmed so far, a whopping seven have worked as state or federal prosecutors. By contrast, none—not a single of these 24 judges—has notable (if any) work experience on the public defender side.
Nobody claims that former prosecutors always become pro-prosecution judges. But, there is also no question that judges’ personal experiences as prosecutors both reflect and shape views that will play a role in their decision-making. Perhaps if the bench were more diverse, varying experiences would produce heightened discussion and reasoning. However, the judiciary’s composition reveals a shocking lack of experience working on the defendant’s side of the bar. As a result, the former prosecutors’ domination of the bench likely has long-term effects on criminal law and criminal procedure doctrine. (Harvard Law Professor Andrew Crespo provocatively raised this possibility when he recently wrote “it is possible that a Supreme Court skewed sharply toward members with prior prosecutorial experience . . . might act differently when engaging with and resolving important questions of constitutional criminal law.”) Though society would benefit from more scholarship on the question of exactly how judges’ previous professional experiences as prosecutors inform their decision-making on criminal law issues, the reality is inescapable.
An excellent piece by Dara Lind at Vox (exploring the problem with the fact that no criminal defense lawyer has served on the U.S. Supreme Court in a generation) makes the point. Citing the research of now-Dean of the University of Texas School of Law Ward Farnsworth, Lind explains: “As Farnsworth found, ideological sympathies definitely shape constitutional jurisprudence—and personal experience shapes ideological sympathies. The concern of a prosecutor-stacked Court is that its members might be too likely to zero in on the guilt of the defendant, and forgive the methods used to catch him.” Lind also acknowledges the “straightforward diversity argument” for elevating some defense lawyers, but emphasizes that “the real asset that former defenders bring to the judiciary, defense lawyers believe, is that they’re used to seeing the law from the perspective of those they represent . . . .”
It is worth reiterating that in terms of the utterly lopsided professional experience his nominees have in criminal cases, Trump’s picks do not vary much from the selections made by previous presidents. In the summer of 2015, Casey Tolan reported that “just 14% of Obama’s nominees for district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors.” Somehow, Obama’s numbers look downright ambitious compared to the disturbing ZERO on Trump’s scorecard. The imbalance is so severe and deeply ingrained that one commentator expressed surprise that “only” seven of 21 individuals in a recent batch of nominations are current or former prosecutors.
The glaring problem with the lack of professional diversity on the bench (which Tolan also notes is replicated at the state level) is one that has the damning strength of compound interest; generations of judges have constructed a criminal justice world that puts ever more power in the prosecutors’ hands. With pressing questions about prosecutorial immunity, the epidemic of Brady violations, and the criminalization of poverty, many believe we are in a moment in which the criminal justice system can be re-imagined, starting with enhanced democratic accountability for prosecutors. While there is reason for hope, judges, like prosecutors, may be obstacles to meaningful reform.
A recent law review article—one we highlighted here—is worth quoting: “The federal bench  is dominated by individuals with prosecution experience and has very few individuals with a public defense background.” The authors further observe, “[b]ecause real criminal justice reform requires judges to check overreach by prosecutors and other law enforcement officials, it is critical that the bench reflect a range of professional backgrounds, and for any future President to put people with diverse backgrounds in positions responsible for criminal justice administration.” Of course, the President has not heeded this sage advice. For that reason, Dahlia Lithwick is right that we should not fear the clowns; we should fear the former prosecutors.