U.S. Circuit Court Judges: Profile of Professional Experiences Prior to Appointment 
Released: 2014-05-09T00:00:00

Introduction

This report provides an analytic overview of the professional experiences and qualifications of those individuals who are currently serving as active U.S. circuit court judges. Ongoing congressional interest in the professional experiences of judicial nominees reflects, in part, the evaluative role of Congress in examining the qualifications of those who are nominated by the President to life-tenure positions.

Senators, when giving floor speeches supporting circuit court nominations, routinely highlight certain professional experiences or qualifications often considered important to serving as a federal judge. Examples of such statements include the following:

A Senator noting that a nominee to the Fourth Circuit Court of Appeals had 22 years of prior judicial experience "at the State courts and the Federal courts." The Senator stated that the nominee "has not only served as a distinguished judge, but also he came to the courts as an experienced prosecutor. He was with the Civil Rights Division at the Department of Justice and with the U.S. Attorney's Office in Maryland."

A Senator noting that a nominee to the First Circuit had joined a prestigious law firm in the Senator's home state, "where over the subsequent 32 years [he] specialized in complex civil litigation at both the trial and appellate levels." The Senator also stated that the nominee had served as chairman of the state's Professional Ethics Commission and as president of the state's bar association, and that "his 30-plus years of real-world litigation experience would bring a valuable perspective to the court."

A Senator emphasizing that a nominee to the Seventh Circuit Court of Appeals would "bring almost 12 years of judicial experience" to the bench as a result of her service on the Wisconsin Supreme Court and as a trial judge on the Milwaukee County Circuit Court. The Senator also noted that prior to the nominee's service as a state judge, the nominee had "practiced commercial litigation for 7 years at one of Wisconsin's most prestigious law firms."

The professional experiences of judicial nominees are also of interest to interest groups, particularly professional organizations such as the American Bar Association (ABA). Judicial nominees are evaluated by the ABA's Standing Committee on the Federal Judiciary. The committee's evaluation criteria focus "strictly on professional qualifications: integrity, professional competence and judicial temperament."

The committee "believes that a prospective nominee to the federal bench ordinarily should have at least twelve years' experience in the practice of law" and that "substantial courtroom and trial experience as a lawyer or trial judge is important." The committee also notes, however, that "distinguished accomplishments in the field of law or experience that is similar to in-court trial work ... may compensate for a prospective nominee's lack of substantial courtroom experience." For prospective circuit court nominees, the committee states that "because an appellate judge deals primarily with the review of briefs and the records of lower courts, the committee places somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts."

Additionally, the professional or career experiences of judges prior to the start of their judicial service has also been of interest to scholars examining whether particular professional experiences might influence or explain variation in aspects of judicial decision making (e.g., whether a judge votes in a consistent ideological direction, the sources relied upon by a judge in reaching his or her decisions, whether a judge decides to publish his or her opinions, etc.). For example, one study found that prior judicial experience for U.S. circuit court judges did not influence variation in judicial decision making in terms of the extent a judge voted in a consistent ideological fashion (such prior experience might have been hypothesized to be a source of consistency in judicial voting). Another study found that district court judges whose primary work before becoming a judge involved non-private practice work experience (e.g., working as a government attorney or law professor) were less likely to rely on regulations and other Internal Revenue Service pronouncements in interpreting the federal tax code than judges whose work prior to becoming a judge was predominately as an attorney in private practice.

Other scholars suggest that the lack of career diversity among federal judges might be problematic, in terms of the lack of diversity diminishing the institutional performance of the courts. Specifically, they argue that, given appropriate procedural conditions, "the greater diversity of participation by people of different [professional] backgrounds and experiences, the greater the range of ideas and information contributed to the institutional process." Consequently, in the context of judicial decision making, "judges with varied career experiences bring distinct perspectives to the bench—perspectives that ultimately lead them to make distinct judicial choices—[and] merging jurists with diverse career paths on a particular court ought ... [to] lead to more effective decision making" by that court.

In light of ongoing interest in the professional qualifications of those nominated to circuit court judgeships, this report seeks to inform Congress by providing statistics related to the professional qualifications or experiences of those currently serving on the bench as U.S. circuit court judges.

Specifically, this report provides statistics and analysis related to (1) the percentage of active circuit court judges with judicial experience, as well as the type of judicial experience; (2) the percentage of active circuit court judges with private practice experience, as well as the length of time of such experience; and (3) the percentage of active circuit court judges by professional experience immediately prior to their appointment to a circuit court judgeship.

Data Caveats

Note that the statistics provided in this report are based upon the professional experiences of individuals serving, as of February 1, 2014, as active U.S. circuit court judges. Consequently, the statistics do not include circuit court judges who, prior to February 1, 2014, had assumed senior status, retired, or resigned.

The total number of circuit court judges included in the analysis is 163. Consequently, this is the denominator used to calculate most of the statistics included in the report. The analysis is based on information provided by the Biographical Directory of Federal Judges . This report will be updated annually by CRS at the beginning of each calendar year.

Most Common Types of Professional Experiences

Figure 1 provides statistics related to the two most common types of professional experiences of U.S. circuit court judges who are currently serving on the bench—prior judicial experience and experience working as an attorney in private practice. The percentages reported for the two types of experiences are not mutually exclusive, meaning that there is some overlap between the two categories. For example, 47.9% of all active circuit court judges have both prior judicial experience as well as experience as an attorney in private practice (while 9.0% have neither prior judicial nor private practice experience).

Altogether, 54.6% of U.S. circuit court judges who are currently serving had prior experience as another type of judge before their appointment to a circuit court (and 45.4% had no such experience). Of the judges with prior judicial experience, 22.7% served solely as another type of federal judge (e.g., a U.S. district court judge), while 20.9% served solely as a state judge and another 11.0% had both prior federal and state judicial experience. Of the 74 circuit judges with no prior judicial experience, 81.8% had worked as attorneys in private practice, including 39.2% who worked in private practice for 15 or more years (and another 14.9% who worked in private practice for 10 to 14 years).

Although over half of active circuit court judges have prior judicial experience (54.6%), a greater percentage have at least some prior experience as attorneys in private practice (84.7%). Similarly, while 45.6% of active circuit judges do not have prior judicial experience, a much smaller percentage, 15.3%, have no prior experience in private practice.

Figure 1 also shows that of active circuit court judges with private practice experience, a plurality (26.4%) had 15 or more years of experience as attorneys in private practice. Another 21.5% had less than 5 years of experience, while 17.2% had 5 to 9 years of experience and 19.6% had 10 to 14 years of experience. Altogether, 46.0% of active circuit court judges had 10 or more years of experience as attorneys in private practice (while 54.0% had less than 10 years of experience or no private practice experience).

Professional Position Immediately Prior to Appointment

Figure 2 reports the percentage of active U.S. circuit court judges who had a particular type of position or occupation immediately prior to their appointment as a circuit court judge. So, for example, a plurality of active circuit court judges, 27.0%, were U.S. district court judges immediately prior to being appointed as circuit court judges. Altogether, half (50.3%) of all active circuit court judges were serving as another type of judge (either a U.S. district court judge, another type of federal judge, or a state judge).

The percentage of circuit court judges serving as another type of judge immediately prior to appointment might be lower than what has been the case, historically, for circuit court judges (at least during the first half of the 20 th century). For example, of circuit court judges appointed during the seven presidencies from Theodore Roosevelt to Franklin Roosevelt, 63.7% were serving as another type of judge at the time of appointment or promotion to the U.S. courts of appeals. Additionally, 55.6% and 57.5% of Eisenhower and Johnson circuit court appointees, respectively, were serving as judges prior to their appointment to a circuit court. In general, service as a U.S. district court judge was the most common type of judicial experience of those serving as judges immediately prior to their appointment as a circuit court judge. As noted by one scholar, the "federal district court bench is a training camp for the federal courts of appeals bench. A president faced with a vacancy on a court of appeals looks, though not exclusively, to sitting district court judges."

Of circuit court judges currently serving on the bench, approximately one-quarter (25.8%) were working as attorneys in private practice prior to being appointed as a circuit court judge, with 22.1% having worked in private practice for 10 years or more. Additionally, of those working in private practice for 10 years or more, 80.6% had been working as an attorney in private practice for at least 15 years.

As the percentages reported in Figure 2 indicate, a relatively large majority of active circuit court judges (72.4%) were, prior to being appointed as circuit judges, serving as either another type of judge or engaged in private practice for 10 or more years (and often for 15 or more years).

Other types of positions held by active U.S. circuit court judges prior to being appointed include working as an attorney at the Department of Justice (DOJ) or a U.S. Attorneys' Office (7.4%) or working as a law professor (6.7%). Another 9.8% of active circuit court judges held other types of positions immediately prior to being appointed.

Of appointees of Democratic Presidents who are currently on the bench, the most common type of position immediately prior to appointment as a circuit court judge was service as another type of judge (54.8% of all active appointees), with a plurality (31.0%) having prior service as a U.S. district court judge. Other types of positions or occupations held by active circuit court appointees of Democratic Presidents immediately prior to appointment were attorneys in private practice (26.2%), attorneys at the Department of Justice or a U.S. Attorney's Office (8.3%), and law professors (6.0%).

Of appointees of Republican Presidents currently on the bench, the most common type of position immediately prior to appointment as a circuit court judge was service as another type of judge (45.6%), with a plurality (22.8%) having served as a U.S. district court judge. Other types of positions or occupations held by active circuit court appointees of Republican Presidents immediately prior to appointment were attorneys in private practice (25.3%), attorneys at the Department of Justice or a U.S. Attorney's Office (6.3%), and law professors (7.6%). Another 15.2% of Republican appointees had another type of position or occupation immediately prior to their appointment.

Conclusion

This report provides a statistical overview of the professional qualifications and experiences of active U.S. circuit court judges. Ongoing congressional interest in the professional background of those nominated to the federal bench reflects, in part, the role of Congress in evaluating the qualifications of those who are nominated by the President to life-tenure positions.

As discussed above, a majority of current circuit court judges have prior judicial experience. A greater majority of active circuit judges also have experience working as attorneys in private practice, often for relatively lengthy periods of time. There are, however, judges without either type of experience who have other types of professional experiences such as working as an attorney for the federal government or as a law professor.