The problem with Elizabeth Warren’s call for a ‘diverse’ judiciary

Sen. Elizabeth Warren’s populist crusade has a new objective: preventing “a corporate capture of the federal courts.” The Massachusetts Democrat and progressive heroine graciously concedes that “there are some really talented judges who came from the private sector.” But she insists that “it matters that someone has represented people other than corporate clients, that they’ve had real experience with people who can’t afford lawyers, that they’ve had real experience trying to fight for the public interest.”

Warren spoke recently at a forum sponsored by Alliance for Justice, a liberal group that recently issued a report titled “Broadening the Bench: Professional Diversity and Judicial Nominations.” The report calls on President Obama to take advantage of the abolition of filibusters for judicial nominations (except those for the Supreme Court) to name more lawyers with experience as public defenders or advocates for labor unions. It notes disapprovingly that 85% of Obama’s judicial nominees have been either corporate attorneys or prosecutors (and in some cases both).

Then it makes a pitch for diversity: “Like all human beings, judges are the product of their background and experiences, including their professional lives before taking the bench.... Thus when judges come from all corners of the legal profession — and particularly when they’ve worked in the public interest, representing those whose voices are otherwise rarely heard — they are equipped to understand the views of each litigant before them, and to render more informed, thorough decisions.”

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Sounds plausible, and the observation that judges “are the product of their background and experiences” is what philosophers call “trivially true.” Of course the Obama administration in choosing judges should cast the net wide, although when it comes to the selection of federal district judges, home-state senators, not the Justice Department, take the lead role.

But the more you think about it, the more the Warren-Alliance for Justice call for diversity on the bench becomes problematic. The first problem is that judges aren’t robots who are programmed to make decisions on the basis of their prior experience (or their gender or their race). Supreme Court Justice Sonia Sotomayor was a prosecutor, but she has been sympathetic to defendants’ rights. Plenty of “corporate attorneys” have done pro bono work on behalf of criminal defendants.

Another kink in the argument: Federal district judges usually sit alone. So if the bench in, say, the Central District of California is balanced between former prosecutors and former defense lawyers, that may be a good thing, but in a particular case there will be only one judge.

If you take a mechanistic view of the relationship between a judge’s background and his or her rulings, the U.S. attorney would have cause to accuse a judge who had been a public defender of a lack of impartiality (and defense attorneys could raise the same objection about a judge who had been a prosecutor). The same dynamic would apply in civil cases: A lawyer for a corporation could challenge the impartiality of a judge who had served as a public-interest lawyer. I don’t think Warren would like that.

Obviously, professional background exerts some influence on a judge’s rulings, just as other personal experiences do. But most judges strive mightily to overcome those biases and rule on the basis of the facts and the law. Overemphasizing the importance of a judge’s prior practice runs the risk of obscuring the importance of other factors: intelligence, courtroom experience and personal probity. (Federal judges take an oath promising to “do equal right to the poor and to the rich.”)

Liberal alarms about a “corporate capture” of the courts are as specious as conservative rants about “unelected judges” who vindicate gay rights.

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