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May 24 2014

A Bench Light On Defense

Last fall, Supreme Court Justice Sonia Sotomayor spoke about the lack of diversity on the federal bench including the Supreme Court. She wasn’t talking just about the glass ceiling on women (thought the current Court has three women on its bench)  she was talking about the lack of diversity in legal experience. She noted that most  federal judges come from big firms or the US Attorneys Office. And that the Supreme Court is usually selected from the Federal Bench. Speaking to students at American University’s Washington School of Law, she stated:

“We’re missing a huge amount of diversity on the bench,and not just racial or gender diversity.” It bothers her that “judges rarely come to the bench from the defense bar, from civil rights experience, or from solo or small practices.”   Now she added that it does not mean that the Court or judiciary would necessarily decide cases differently if they had such experience in their midst stating:  “None of us speak in one voice.Instead, enabling the public to see their own backgrounds reflected in the judiciary would give the public more confidence that they are getting a fair hearing.”   And that’s a good point. After all Earl Warren, one of the most progressive justices in the area of criminal defense was a long time  California prosecutor. He has stated that it was seeing the injustices of the criminal justice system up close that led him to have such a pro-rights philosophy.  But justices don’t live in a vacuum and their personal  experiences and philosophy have to in some way shape their opinion on the law, its purpose and its reach.  Many judges had prosecutorial experience – including Sotomayor  who was a Manhattan Assistant District Attorney and an Assistant United States Attorney – so wouldn’t the bench be more balanced with a criminal defense practitioner on there from time to time?  

 

US Supreme Court

US Supreme Court

Even if the criminal defense lawyer only represented private, well-moneyed clients, they are there in the trenches awaiting their cases to be called; trading war stories with fellow counsel; and seeing first-hand how the indigent  are treated by the court system. That experience has to effect their thinking and eventually their judicial philosophy. Yes, few judges have intellectual property experience and the US Supreme Court decides cases in those areas all the time. But those cases are largely rooted in a straight analysis of the law and application of the facts. In criminal cases, many times judges have to view things from the perspective of the defendant or the complainant or the police officer. Was there “reasonable suspicion?” “Would a reasonable person believe he was in custody?” “Did the defendant receive effective assistance of counsel?”  These questions delve into grey areas where some practical experience would be vital. Having the voice of a seasoned criminal defense practitioner would be a great addition to the conversation when it comes time to render an opinion.  

 

So I looked into the legal experience of all the current US Supreme Court judges. Four of the nine have prosecutorial experience as either a district attorney (Sotomayor) or an US Attorney General (Breyer & Alito) or a State Attorney General (Thomas). None ever practiced criminal defense or even worked in a small firm. In fact two others had federal government experience (Roberts & Kagan – US Solicitor General’s Office); and the three others were predominantly law professors (Scalia, Ginsburg  & Kennedy).(though Ginsburg did champion civil rights causes as counsel to the ACLU).  So I decided to look all the way back, to all the judges that ever sat on the High Court. Very few of the 103 or so prior justices had any criminal experience. The first one was John Carton of Tennessee who served from 1837-1865. The last one was Thurgood Marshall who handled more than his share of death penalty cases. After Carton come Abraham Lincoln’s appointments. Of the five justices he appointed during his Presidency, four had criminal defense experience, including his former law partner David Davis (1862-1877) and Salmon P. Chase (1864-1873) who also was Secretary of the Treasury and regularly defended fugitive slaves in the courtroom. So it seems that electing Presidents with criminal defense experience might be the ticket to getting judges with this experience on the Federal bench.  After Lincoln, Teddy Roosevelt is the next to appoint someone with criminal defense experience – William Day (1903-1922).  Then no one until Marshall (1967-1991) and none since!  It should be pointed out that along the way many prosecutors have risen to the Supreme Court.  Below is a chart setting forth all the justices, their terms and their main area of legal experience. It is to be hoped that Sotomayor’s words are heard by President Obama or whomever is the next president to seat a Supreme Court Justice; Obama should also nominate several for the current Federal judicial vacancies.  Let’s add some diversity to the Court and get an experienced criminal defense practitioner on the bench – there are many out there who would make remarkable Supreme Court judges.

#JudgeStateBorn/DiedYearsAppointedExperience
1James WilsonPA1742–17981789–1798WashingtonCommercial/maritime law
(9 years)
2John Jay†NY1745–18291789–1795WashingtonAmbassador to Spain
(6 years)
3William CushingMA1732–18101789–1810WashingtonPracticed briefly as barrister took over father’s judgeship
(21 years)
4John Blair, Jr.VA1732–18001789–1795WashingtonClerk of the colonial legislature
(6 years)
5John RutledgeSC1739–18001789–1791WashingtonSuccessful lawyer primarily commercial law
(2 years)
6James IredellNC1751–17991790–1799WashingtonBrief time in practice, then local judge
(9 years)
7Thomas Johnson*MD1732–18191792–1793WashingtonBrief time in practice, then assemblyman
(1 years)
8William PatersonNJ1745–18061793–1806WashingtonBrief time in practice then became delegate to provincial congress
(13 years)
5 (again)John Rutledge*†SC1739–18001795–1795WashingtonSuccessful lawyer primarily commercial law
(0 years)
9Samuel ChaseMD1741–18111796–1811WashingtonThree years in practice then became Maryland assemblyman
(15 years)
10Oliver Ellsworth†CT1745–18071796–1800WashingtonSix years in private practice then became Connecticut Attorney General
(4 years)
11Bushrod WashingtonVA1762–18291798–1829Adams, J.Nephew of George; few years in private practice then clerk to Virginia Legislature. Recess appointment
(31 years)
12Alfred MooreNC1755–18101800–1804Adams, J.Never practiced; assemblyman
(4 years)
13John Marshall†VA1755–18351801–1835Adams, J.Real estate law
(34 years)
14William JohnsonSC1771–18341804–1834JeffersonApparently never practiced; upon graduation he became delegate to South Carolina House of Representatives; three years later he became speaker
(30 years)
15Henry Brockholst LivingstonNY1757–18231807–1823JeffersonBecame judge in NY after 8 years of practice
(16 years)
16Thomas ToddKY1765–18261807–1826JeffersonThree years of private practice then clerk to Kentucky legislature
(19 years)
17Gabriel DuvallMD1752–18441811–1835MadisonNever practiced; clerk to the Maryland legislature. Often voted most insignificant Supreme Court judge in history
(24 years)
18Joseph StoryMA1779–18451812–1845MadisonMaritime law
(33 years)
19Smith Thompson*NY1768–18431823–1843MonroePracticed four years then NY assemblyman
(20 years)
20Robert TrimbleKY1776–18281826–1828Adams, J. Q.Practiced one year; then became member of Kentucky house of representatives
(2 years)
21John McLeanOH1785–18611830–1861JacksonSix years in practice then congressman from Ohio
(31 years)
22Henry BaldwinPA1780–18441830–1844JacksonDeputy State Attorney General
(14 years)
23James Moore WayneGA1790–18671835–1867JacksonFive years in practice then assemblyman from Georgia
(32 years)
24Roger B. Taney†MD1777–18641836–1864JacksonOne year in practice became State assemblyman then did banking law
(28 years)
25Philip Pendleton BarbourVA1783–18411836–1841JacksonThree years in practice then member of Virginia House of Delegates
(5 years)
26John CatronTN1786–18651837–1865JacksonThree years as a local prosecutor then land use lawyer. FIRST ONE with any criminal justice trial experience
(28 years)
27John McKinleyAL1780–18521837–1852Van BurenFew years in practice then State assemblyman then US senator
(15 years)
28Peter Vivian DanielVA1784–18601842–1860Van BurenOne year in practice then member of Virginia House of Delegates
(18 years)
29Samuel NelsonNY1792–18731845–1872TylerThree years in practice then postmaster for Cortland NY
(27 years)
30Levi Woodbury*NH1789–18511845–1851PolkFour years in practice then clerk to State Senate, later Governor
(6 years)
31Robert Cooper GrierPA1794–18701846–1870PolkPracticed for fifteen years in commercial law predominantly
(24 years)
32Benjamin Robbins Curtis*MA1809–18741851–1857FillmoreReal estate law; then state representative
(6 years)
33John Archibald CampbellAL1811–18891853–1861PierceTrusts and estates
(8 years)
34Nathan CliffordME1803–18811858–1881Buchanan
(23 years)
35Noah Haynes SwayneOH1804–18841862–1881LincolnDeputy county attorney then State legislator
(19 years)
36Samuel Freeman MillerIA1816–18901862–1890LincolnCommercial law; maritime law
(28 years)
37David Davis*IL1815–18861862–1877LincolnLincoln’s law partner – so he probably did criminal defense
(15 years)
38Stephen Johnson FieldCA1816–18991863–1897LincolnAlso a general trial lawyer then judge so he likely had criminal law experience
(34 years)
39Salmon P. Chase†OH1808–18731864–1873LincolnTrial lawyer often defended fugitive slaves
(9 years)
40William StrongPA1808–18951870–1880GrantNot much info on him practiced for ten years or so then went to House of Representatives
(10 years)
41Joseph P. BradleyNJ1813–18921870–1892GrantPatent and railroad law
(22 years)
42Ward HuntNY1810–18861873–1882GrantOver 30 years of practice in various fields
(9 years)
43Morrison Waite†OH1816–18881874–1888GrantCommercial law and bankruptcy
(14 years)
44John Marshall HarlanKY1833–19111877–1911HayesShort time in practice then became local judge
(34 years)
45William Burnham WoodsAL1824–18871881–1887HayesGeneral practice
(6 years)
46Stanley MatthewsOH1824–18891881–1889GarfieldFew years in practice then clerk of the Ohio House of Representatives
(8 years)
47Horace GrayMA1828–19021882–1902Arthur
(20 years)
48Samuel BlatchfordNY1820–18931882–1893ArthurAdmiralty law
(11 years)
49Lucius QuintusMS1825–18931888–1893ClevelandFew years of practice then Georgia House of Representatives
Cincinnatus Lamar(5 years)
50Melville Fuller†IL1833–19101888–1910ClevelandBanking law
(22 years)
51David Josiah BrewerKS1837–19101890–1910Harrison, B.City attorney of Leavenworth Kansas
(20 years)
52Henry Billings BrownMI1836–19131891–1906Harrison, B.Admiralty law
(15 years)
53George Shiras, Jr.PA1832–19241892–1903Harrison, B.Railroad and corporate law
(11 years)
54Howell Edmunds JacksonTN1832–18951893–1895Harrison, B.Railroad and corporate law
(2 years)
55Edward Douglass White†LA1845–19211894–1921After short time in practice became member of Louisiana State Senate
(27 years)
56Rufus Wheeler PeckhamNY1838–19091896–1909ClevelandDistrict attorney then counsel to City of Albany
(13 years)
57Joseph McKennaCA1843–19261898–1925McKinleyDistrict Attorney for Solano County
(27 years)
58Oliver Wendell Holmes, Jr.MA1841–19351902–1932Roosevelt, T.Admiralty law and commercial law
(30 years)
59William R. DayOH1849–19231903–1922Roosevelt, T.Criminal defense and corporate law
(19 years)
60William Henry MoodyMA1853–19171906–1910Roosevelt, T.Prosecutor (unsuccessfully prosecuted Lizzie Borden)
(4 years)
61Horace Harmon LurtonTN1844–19141910–1914TaftCorporate and commercial law
(4 years)
62Charles Evans HughesNY1862–19481910–1916TaftCorporate law
(6 years)
63Willis Van DevanterWY1859–19411911–1937TaftCity attorney for Cheyenne Wyoming
(26 years)
64Joseph Rucker LamarGA1857–19161911–1916TaftFew years in practice then House of Representatives
(5 years)
65Mahlon PitneyNJ1858–19241912–1922TaftFew years in practice then House of Representatives
(10 years)
66James Clark McReynoldsTN1862–19461914–1941WilsonAntitrust law
(27 years)
67Louis BrandeisMA1856–19411916–1939WilsonLabor law, civil rights
(23 years)
68John Hessin ClarkeOH1857–19451916–1922WilsonRailroad law
(6 years)
69William Howard Taft†OH1857–19301921–1930HardingAssistant prosecutor
(9 years)
70George SutherlandUT1862–19421922–1938HardingCorporate and railroad law
(16 years)
71Pierce ButlerMN1866–19391923–1939HardingRailroad law
(16 years)
72Edward Terry SanfordTN1865–19301923–1930HardingAssistant attorney general
(7 years)
73Harlan F. Stone†NY1872–19461925–1946Corporate and estate litigation
(21 years)
74Owen RobertsPA1875–19551930–1945HooverAssistant district attorney in Philadelphia.
(15 years)
75Benjamin N. CardozoNY1870–19381932–1938HooverAppellate lawyer
(6 years)
76Hugo BlackAL1886–19711937–1971Roosevelt, F.Labor law and personal injury
(34 years)
77Stanley Forman ReedKY1884–19801938–1957Roosevelt, F.Two years in private practice then Kentucky General Assemblyman
(19 years)
78Felix FrankfurterMA1882–19651939–1962Roosevelt, F.Assistant United States Attorney
(23 years)
79William O. DouglasCT1898–19801939–1975Roosevelt, F.Few years in practice then law professor
(36 years)
80Frank MurphyMI1890–19491940–1949Roosevelt, F.Assistant United States Attorney
(9 years)
81James F. ByrnesSC1882–19721941–1942Roosevelt, F.Few years as a prosecutor then House of Representatives
(1 years)
82Robert H. JacksonNY1892–19541941–1954Roosevelt, F.Railroad law
(13 years)
83Wiley Blount RutledgeIA1894–19491943–1949Roosevelt, F.Few years in private practice then law professor
(6 years)
84Harold Hitz BurtonOH1888–19641945–1958TrumanCompany attorney for Utah Power and Light
(13 years)
85Fred M. Vinson†KY1890–19531946–1953TrumanFew years in general practice then House of Representatives
(7 years)
86Tom C. ClarkTX1899–19771949–1967TrumanAssistant district attorney
(18 years)
87Sherman MintonIN1890–19651949–1956TrumanCounsel to the Indiana Power Commission
(7 years)
88Earl Warren*†CA1891–19741953–1969EisenhowerAssistant District Attorney then Attorney General
(16 years)
89John Marshall Harlan IINY1899–19711955–1971EisenhowerAssistant united States Attorney
(16 years)
90William J. Brennan, Jr.*NJ1906–19971956–1990EisenhowerLabor law
(34 years)
91Charles Evans WhittakerMO1901–19731957–1962EisenhowerCorporate law
(5 years)
92Potter Stewart*OH1915–19851958–1981EisenhowerFew years in practice then City Councilman
(23 years)
93Byron WhiteCO1917–20021962–1993KennedyCommercial law
(31 years)
94Arthur GoldbergIL1908–19901962–1965KennedyLabor law
(3 years)
95Abe FortasTN1910–19821965–1969Johnson, L.Law professor then chair of SEC
(4 years)
96Thurgood MarshallNY1908–19931967–1991Johnson, L.Criminal defense, civil rights
(24 years)
97Warren E. Burger†VA1907–19951969–1986NixonAssistant Attorney General
(17 years)
98Harry BlackmunMN1908–19991970–1994NixonTax, trust and estates
(24 years)
99Lewis F. Powell, Jr.VA1907–19981972–1987NixonCorporate and railroad law
(15 years)
100William Rehnquist†AZ1924–20051972–2005Assistant Attorney General
VA[n 11](33 years)
101John Paul StevensIL1920–1975–2010FordAntitrust law
(35 years)
102Sandra Day O'ConnorAZ1930–1981–2006ReaganAssistant State Attorney General
(25 years)
103Antonin ScaliaVA1936–1986–presentReaganLaw professor, Assistant US Attorney General
(28 years)
104Anthony KennedyCA1936–1988–presentReaganLaw professor, lobbyist
(26 years)
105David SouterNH1939–1990–2009Bush, G. H. W.Assistant State Attorney General
(19 years)
106Clarence ThomasGA1948–1991–presentBush, G. H. W.Assistant State Attorney General
(23 years)
107Ruth Bader GinsburgNY1933–1993–presentClintonLaw professor, General Counsel ACLU
(21 years)
108Stephen BreyerMA1938–1994–presentClintonAssistant US Attorney General, law professor
(20 years)
109John G. Roberts†MD1955–2005–presentBush, G. W.Few years in private practice in appellate law and then Solicitor General’s Office
(9 years)
110Samuel AlitoNJ1950–2006–presentBush, G. W.Assistant US Attorney General then Solicitor General’s Office
(8 years)
111Sonia SotomayorNY1954–2009–presentObamaAssistant District Attorney in Manhattan
(5 years)
112Elena KaganMA1960–2010–presentObamaLaw professor, then White House Counsel and Solicitor General
(4 years)

   

2 comments

  1. Carlos Danger

    I nominate this guy:

    http://news.yahoo.com/video/florida-judge-snaps-public-defender-095508632.html

    1. Oscar Michelen

      See my next blog post

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