A Professional Judiciary?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

11 Responses

  1. Greg says:

    I saw a speech that Justice Scalia gave on C-SPAN in the last year or so. He made this same point but went a step further, in a way I found surprising coming from him. He said the overall tragedy here was that not only are all the Justices former sitting judges, but almost all federal judges period are becoming lifelong government lawyers, each with extensive careers in prosecutors offices, the executive branch, and the judiciary.

    As he put it, what made the American system great (rather than, say, the system in France where you basically go to school to be a judge and start as a judge in a small court and work your way up), is that the great American judges spent their careers, in his words “suing the government!” Now they “are the government,” and always have been.

    So not only do we have a professional judiciary, but that professional judiciary is part of a larger, life-long, federal bureaucracy.

  2. Lori Ringhand says:

    I suspect that one of the reasons for the trend is that being able to point to the “professionalism” of your nominee is an effective way to respond to the demand from senators that nominees just “follow the law” rather than “make it.” I doubt the trend will stop as long as the confirmation debate continues to embrace that simplistic rhetoric.

  3. Vladimir says:

    Magliocca for 7th Circuit!

  4. Gerard Magliocca says:

    Vladimir,

    To quote a favorite (though evil) fictional character, “You might very well think that, but I couldn’t possibly comment.”

  5. Howard Wasserman says:

    And combining issues implicit in the comments from both Greg and Lori:

    Anyone who spent her prior career “suing the government” is going to be slammed and opposed in the confirmation process as likely an activist who has tried to manipulate the law to serve ideological ends or to coddle criminals and be soft on crime.

    The irony of Scalia putting forth this idea is that, of course, he has helped make it next-to-impossible to sue or oppose the government in court, thus somewhat casting doubt on those who take that career path.

  6. Lisa says:

    It is a great disappointment since the president indicated a desire to go outside the ‘judicial monastary.’ It’s sad to see people see the prosecutor’s office (esp US Attorney’s Offices) as the only way to a judgeship. If you’ve been a criminal defense attorney, then you can’t make it through confirmation / election since you associate with murderers, defend rapists, etc. It’s hard to create an appearance of neutrality when all of the judges are career prosecutors – some of whom think that’s still their primary role.

  7. Young Guest says:

    Your concerns seem valid, but there are many other factors that you need to consider. For example, I’ve talk to some district court judges who would never want to be on an appellate panel because it’s boring. Also, having circuit judges coming from the lower bench is more often than not a good thing because they intimately understand the process through which the opinion they are reviewing came through … etc etc. It’s sad, however, to see the policy making bench (the Sup. Ct.) being staffed by former circuit judges. Shame.

  8. jimbino says:

    Those were probably the only ones he found to be, like him, totally lacking in sophistication in math and science.

  9. Holiday Inn Express says:

    Greg’s comment is very thought provoking. I believe that Scalia is right, and government employees (e.g. sitting judges and AUSAs) do exhibit a pro-government bias.

    What credentials, then, track a skepticism towards government?

    1. Law professors. This is not the answer in my opinion. Like ASUAs, most are government employees. Moreover, most are ideologically incompatible with skepticism towards the government. Professors generally believe that the federal and state governments possess almost unlimited power. (See, e.g., Orthodoxy on Lochner, deference in admin law, and Commerce Clause). Sure, academics tend to be more pro-liberty on certain issues than judges are (e.g., 4th amendment), but I think that’s an exception to the general trend. Counterexamples like Posner and Kozinski are similarly anomalous in my opinion.

    2. Private practice. This credential does not signal a pro-government bias but it doesn’t signal skepticism either. Here, the bias is not anti-government; the bias is pro-corporate. A pro-corporate bias is, however, ideologically indeterminate. An attorney might agitate for or against government power, depending on the client’s need. Moreover, many biglaw partners spends years in a govenrnment agency.

    3. What about public defenders? I think this is the strongest signal, but precisely for that reason, most likely to be controversial. Also, I get the impression that public defenders are perceived to be a poor credential. AUSAs have much higher upward mobility than public defenders. For that reason, people who are public defenders happen to be poorly credentialed (no clerkship, lower-ranked school, etc.). There’s a vicious circle and public defenders don’t get judgeships.

    4. Academic + Pro-Bono. The academic who does pro-bono work to fight the government is the best credential. Examples include Katyal (Hamdan) and Barnett (Raich). [Though I note that Katyal might now be tainted by working in the halls of power.] Academics have strong objective credentials (school, clerskhip, etc.) that public defenders don’t. But, by virtue of public service, a strong commitment to fighting the government.

  10. John Steele says:

    I practice the “law governing lawyers” (formerly known as legal ethics), and from my parochial point of view the declining percentage of of appellate judges who had extensive experience in private practice is unfortunate. Too often I read appellate opinions that seem to caricature private practice, and then when I research the judge’s history I find that they have zero experience in the field.