Changing backgrounds of U.S. district judges: Likely causes and possible implications

Judicature

Volumn 93, Issue 4, 2010, Pages 140-149

  Wheeler, Russell ^a  

^a BROOKINGS INSTITUTION   (United States)

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EID: 77950651728     PISSN: 00225800     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (50)

1. Most recendy Sheldon Goldman, Sara Schiavoni, and Elliot Slotnick, W. Bush's judicial legacy: Mission accomplished, 92 JUDICATURE 258, esp. at 278 and Table 3 at 279 (2009).
2. For a different approach to analyzing changes over time in federal judges' vocational backgrounds, see Monique Renee Fournet, Kyle C. Kopko, Dana Wittmer, and Lawrence Baum, Evolution of judicial careers in the federal courts, 1789-2008, 92 JUDICATURE 62 (2009).
3. John Roberts, "2006 Year End Report on the Federal Judiciary," (Jan. 2007) viewed at www.uscourts.gov/ttb/2007-01/2006/index.html.
4. See Sheldon Goldman, PICKING FEDERAL JUDGES, LOWER COURT SELEC-TION FROM ROOSEVELT TO REAGAN 147-149, 189, 227 (1997),
5. and Goldman et al, supra n. 1.
6. 28 U.S.C. § 28 U.S.C. 13133(a)&(b) and Administrative Office of the U.S. Courts, AUTHORIZED JUDGESHIPS FROM 1789 TO PRESENT at 8 (2009), available at htrp://www.uscourts.gov/history/allauth.pdf There are also four term-limited territorial district judges.
7. My principal data source is the Federal Judicial Center's Federal Judges Biographical Database, available at fjc.gov. The database identifies every good behavior-tenured federal judge since 1789. It enables unique searches for several court, appointment, and demographic variables but not for the pre-nomination vocations listed in each judge's "Professional Background" section, which comes from a variety of sources, including other researchers, forms completed by sitting judges, and some FJC staff review. Vocational background data in my data set come from key word searches graciously undertaken for me by Federal Judicial Center Assistant Historian Steven Saltzgiver and my own separate review of the "Professional Background" entries of the 1, 795 district judges. I counted as former judges or public sector lawyers those full-time in the position at the time of their district judge nomination as well as the handful who were, at that time, no more than a year removed from their public sec-tor position. I also included among state judges two or three federal admin-istrative judges.
8. An Act to abolish the office of United States commissioner, to establish in place thereof within the judicial branch of the Government the office of United States magistrate, and for outher purposes, 82 Stat. 1107. October, 17, 1968.
9. An Act to establish an uniform Law on the Subject of Bankruptcies. (Excerpt: "Title II-Amendments to Title 28 of the United States Code and to the Federal Rules of Evidence), 92 Stat. 2657. November 6, 1978,
10. as amended by An Act to Amend Tide 28 of uie United States Code Regarding Jurisdiction of Bankruptcy Proceedings ⋯, 98 Stat. 333, July 10, 1984.
11. Goldman, PICKING FEDERAL JUDGES, supran. 3, at 58-59, 104-105
12. E.g., Goldman et al, supra n. 1
13. and Jennifer Segal Diascro and Rorie Spill Solberg, George W. Bush's legacy on the federal bench: Policy in the face of diversity, 92 JUDICATURE 289 (2009)
14. Goldman et al supra n. 1, at 278.
15. Richard A. Posner, How JUDGES THINK 168-169 (2008)
16. See, for magistrate judges, 28 U.S.C. § 631 (a) and for bankruptcy judges § 120 of Public Law 98-353, as amended and set out as a note to 28 U.S.C.A. § 152.
17. William Rehnquist, "2001 Year End Report on the Federal Judiciary," (Jan. 2002) viewed at www.uscourts.gov/ttb/jan02ttb/jan02.html.
18. Roberts, supra n. 2.
19. Id.
20. Rehnquist, supran. 13.
21. E.g., Terri Peretti, Where have all the politi-cians gonei Recruiting for the modem Supreme Court, 91 JUDICATURE 112 (2007).
22. The text of his University of Arizona Rehn-quist Center lecture apparendy has not been pub-lished. The quotations are from Adam Liptak, Roberts Sets Off Debate on Judicial Experience, NY Times, February 16, 2009. A video of the lec-ture is available at www.rehnquistcenter.org/ newsletter.cfm?page=news; the relevant com-ments are at about minutes 16 and 29.
23. Moore, Scalia: Court Needs People from Varied Backgrounds, Clarion Ledger (Miss.), Jan. 5, 2010. Available at: www.clarionledger.com/article/ 20100105/NEWS/1050338/Scalia-Court-needs-people-from-varied-backgrounds
24. Rehnquist, supra n. 13.
25. I estimate time spent in private practice as time from law school, a clerkship, and/or active-duty, non-JAG military service, to the year the per-son entered his or her public sector post that started uninterrupted public sector service until uie district court appointment I counted all years as a judge or public service lawyer, even on differ-ent courts or offices, assuming those years consti-tute uninterrupted public sector service prior to district court appointment. A district judge who had, immediately prior to appointment, been a state trial judge for three years and an appellate judge for three years had six years of judicial serv-ice. The same calculus holds for a judge who had been a state prosecutor for three years, and then, immediately, a federal prosecutor for three years. My estimates of time spent in private practice are drawn from my inspection of the "Professional Background" section of each judge's Federal Judi-cial Center judicial biography. The Professional Background information does not use standard terms and is based on work of other researchers or forms filled out by sitting judges. I encountered a variety of problems. For example, a biography might say the judge was in "Private Practice, 1973-1988" but also say "Deputy Solicitor, Village of Pleasantville, 1980-1983." Some local prosecution positions are part-time, so it's plausible that she was in private practice and served Pleasantville only occasionally. But it may be uiat the person filling out the form was inexact I coded the back-grounds as best 1 could, but these data should be taken with a grain of salt. More exhaustive research on Ulis question would require reference to additional materials, multiple coders, and tests for inter-coder reliability.
26. Goldman et al, supra n. 1
27. and Goldman, supra n. 3.
28. See, for example, Margaret S. Williams, Individual Explanations for Serving on State Courts, 30 JUST. SYS. J. 158 (2009).
29. Judith Resnik, Judicial Selection and Democra-tic Theory: Demand, Supply, and Life Tenure, 26 CAR-DOZO L. REV., 579, 608 (2005).
30. E.g., Goldman et al, supra n. 1, at 275.
31. See Williams, supra n. 23.
32. Roberts, supra n. 2,
33. Rehnquist, supra n. 13.
34. Russell Wheeler and Michael Greve, "How to Pay the Piper: It's Time to Call Different Tunes for Congressional and Judicial Salaries," Appen-dix 1 (Brookings, April 2007) and Pay Table ("Judicial Salaries Since 1968") (on U.S. Courts website at http://www.uscourts.gov/salarychart pdf) and Bureau of Labor Statistics Inflation Cal-culator, available at http://data.bls.gov/ cgi-bin/cpicalc.pl
35. No.767 "Cost of Living Index-Selected Metropolitan Areas, First Quarter 1989," in Bureau of the Census, STATISTICAL ABSTRACT OF THE UNITED STATES, 1990 at 474,
36. and Table 706, "Cost of Living Index-Selected Urban Areas: Annual Average 2007, in U.S. Census Bureau, STA-TISTICAL ABSTRACT OF THE UNITED STATES: 2009 at 469-471. (These are the first and most recent years available to me.)
37. Id.
38. Williams, supra n. 23, at 166.
39. Reported in Russell Wheeler, "Prevent Fed-eral Court Nomination Batdes, De-Escalating the Conflict over the Judiciary," (revised, August 2008) at 8-9, available at http://www.brookings.edu/ papers/2007/1120-judiciary- wheeler-opp08.aspx
40. Thomas Stratmann and jared Garner, Judicial Selection: Politics, Biases, and Constituency Demands, 118 PUB. CHOICE 251, 265 (2004).
41. James Lindgren, Examining the American Bar Association's Ratings of Nominees to the U.S. Courts of Appeals for Political Bias, 1989-2000, 17J.L. & POL. 1 (2001);
42. Michael J. Saks & Neil Vidmar; A Flawed Search for Bias in the American Bar Association's Ralings of Prospective Judicial Nominees: A Critique of the Lindgren Study, 17 J. L. & POL. 219 (2001);
43. Richard Vining, Jr., Amy Steigerwalt, and Susan Smelcer, "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees," Paper prepared for presentation at the Annual Meeting of the Mid-west Political Science Association, April 2-5, 2009, Chicago, Illinois.
44. The seven states are California, Colorado, Florida, Georgia, Texas, Washington, and Wiscon-sin; there were no vacancies for the Hawaii commission to act on, and I did not learn until after the analysis that Pennsylvania's and Oregon's senators evidendy used committees and do not know for what periods the committees operated.
45. Senators, and a few House members, who have appointed screening committees are listed at the American Judicature Society website at http://www.judicialselection.us/federal-judicial-selection/federal-judicial- nominating-commissions.cfm?state=FD.
46. Carol J. Williams, Judicial Pay Disparity Drains Talent from Federal Bench, Los Angeles Times, September 27, 2009.
47. D. Brock Homby, The Business of the U.S. District Courts, 10 GREEN BAG 453, 462 (2007).
48. Lumbermen's Mutual Cas. Co. v. Elbert, 348 U.S. 48 at 59 (concurring opinion) (1955).
49. Williams, supra n. 23, esp. at 170.
50. Posner, supra n. 11, at 166.