Evolution of Judicial Careers in the Federal Courts, 1789-2008

Article excerpt

In the past few decades, some signs of change in the judicial careers of federal judges have appeared. The most widely noted has been the strong tendency to recruit Supreme Court nominees from the ranks of sitting federal judges. After the selection of Sandra Day O'Con- nor every Court nominee except Harriet Miers has come from the federal courts of appeals, and opponents cited Miers's lack of judicial experience as a reason to deny her a seat on the Court.1 Since the Miers episode, the nominations of Samuel Alito in 2005 and Sonia Sotomayor in 2009 have reinforced the pat- tern of choosing court of appeals judges to fill Supreme Court vacan- cies. Meanwhile, studies of federal judges have found evidence that judges appointed to the district courts and courts of appeals have more prior experience in thejudiciary than in the past.2

These signs of change led Judge Richard Posner to observe that " [w] e may be evolving toward the European system of a career judiciary...."3 That observation can be understood in terms of the distinction between a career judiciary and what Nicholas Georgakopoulos called the "recognition judiciary" of common-law countries such as the U.S.4 In a career judiciary, found in many civil-code countries such as France or Germany, lawyers move into lower levels of the judiciary early in their careers, and (to the extent they are successful) they move upward to higher courts over urne. Often the highest court stands outside this system, but with that exception the judiciary resembles a bureaucracy in the patterns of selection and promotion.

To varying degrees, common-law countries depart from the model of a career judiciary.' The federal judiciary of the U.S. fits the model of a recognition judiciary well; judges come to the courts not at the start of their legal careers but after serving in other legal and nonlegal positions, and they usually become federal judges relatively late in their professional lives. There is no fixed career ladder within the federal judiciary, and most judges on the district courts and courts of appeals do not win promotion to a higher court.'1

Given this tradition of a recognition judiciary in the federal courts, any movement toward a career judiciary would be intriguing. Undoubt- edly, as Judge Posner noted, we are still a long way from the civil law model.7 But there may be a significant movement in the direction of a career judiciary, one in which federal judgeships occupy a larger portion of judges' legal careers and judges move upward more systematically through the federal courts.

If this change is indeed occurring, it may be consequential. To the extent that the federal courts move from the model of a recognition judiciary to a career judiciary, that change could affect the perspectives and behavior of federal judges. When promotions through the ranks of judges are common, judges who are interested in promotion may have incentives to rule in ways that presidents and senators favor." And a Supreme Court whose members all served on lower courts may act differently from one whose members have a wider array of backgrounds. For instance, the Court collectively may be more closely oriented to the legal system and less cognizant of the practical consequences of its decisions than it would be if the justices were more diverse in their backgrounds.''

The possible effects of the promotional path from the courts of appeals to the Supreme Court have been a matter of concern for some commentators.1" Indeed, since the Clinton administration there has been considerable interest in diversifying the Court with members who come from fields other than the judiciary. That interest was reflected in President Obama's inclusion of two lawyers without judicial experience among the four candidates whom he interviewed as potential successors to Justice David Souter."

Significant as appointments to the Supreme Court are, we are concerned with a broader question, the extent to which the federal judiciary as a whole has moved toward a career judiciary. …