Judges with backgrounds as prosecutors or corporate lawyers, who represent the majority of federal district court jurists, are significantly more likely to rule in favor of employers in workplace disputes, according to a new study of diversity on the bench.
Emory University law professor Joanna Shepherd conducted the study, which which she described as the first published research about whether judges from certain professional backgrounds are more likely to rule against workers.
Shepherd concluded that judges appointed by former President Barack Obama with corporate backgrounds are 36% less likely to rule on behalf of employees. Obama judges who have a background as prosecutors are 50% less likely to decide in favor of employees in those cases compared with non-prosecutors, she reported.
Her work received some financial support from the group Demand Justice, which advocates for progressive judicial nominees.
The new findings come as advocates push for greater professional diversity among President Biden’s presumptive judicial nominees. Former prosecutors and corporate lawyers make up nearly 7 in 10 judges on the federal district courts, which consider lawsuits over employment, immigration, the environment and other topics.
“Our results suggest that expanding the professional diversity of the federal judiciary will do more than just create a judiciary that is more representative of the legal profession,” Shepherd said. “It can affect actual case outcomes and, as a result, the development of legal precedent.”
Shepherd studied rulings by federal district court judges appointed by Obama and former President Donald Trump in employment disputes between 2015 and 2019. While Obama emphasized ethnic and gender diversity in his picks, and Trump’s judges are overwhelmingly white and male, they do have certain attributes in common, she said.
At least one-third of both Obama and Trump lower court judges served as federal prosecutors for at least three years. Nearly one-quarter of Trump’s picks came from the country’s 200 biggest law firms. And about 45% of Obama’s judges had served as prosecutors at the state or federal level.
Lawyers with backgrounds as public defenders or state court judges tend to be far more racially and ethnically diverse, the study said.
“Presidents of both parties have typically defaulted to certain kinds of lawyers to appoint those judges in the past,” Shepherd told NPR in an interview. “But if they want to ensure that judicial decisions are reflecting a broad range of viewpoints, they really should consider diversifying the types of people they select from the bench beyond just the federal prosecutors and the corporate lawyers.”
The idea already is winning some support from top officials in the Biden administration. During the transition period, incoming White House counsel Dana Remus wrote senators asking for suggestions for the lifetime-tenured judge positions — emphasizing diversity based on race, ethnicity, national origin, gender, sexual orientation, religion, veteran status and disability. She also explicitly requested candidates with experience as public defenders and civil rights lawyers. Remus asked for names to be shared even before Inauguration Day in January.
“We have a moment now where Democrats from the president all the way down to grassroots are focused on our courts like never before, so we have a chance to start to restore some balance and legitimacy to our courts and undo some of the damage that Donald Trump and Mitch McConnell have done,” said Christopher Kang, co-founder of Demand Justice.
Kang, who worked on judge nominations in the Obama White House, said he expects to see the first wave of Biden judges as early as March. He said Democratic senators, in their recommendations and eventual confirmations, need to “start prioritizing people who have been left out, even though they’ve really been doing the work of representing the most marginalized and at need in our justice system.”