When Advocates Become Adjudicators: Tracing the Effects of Prosecutorial and Public Defense Experience on Judicial Decision Making

• Published date: 01 November 2023
• DOI: http://doi.org/10.1177/1532673X231175138
• Author: Banks Miller,Brett Curry
• Date: 01 November 2023
• Subject Matter: Articles

Article

American Politics Research

2023, Vol. 51(6) 796–804

© The Author(s) 2023

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DOI: 10.1177/1532673X231175138

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When Advocates Become Adjudicators:

Tracing the Effects of Prosecutorial and Public

Defense Experience on Judicial Decision

Making

Banks Miller

1

and Brett Curry

2



Abstract

We assess the inf‌luence professional background –specif‌ically, having been a prosecutor or a public defender –exerts on

decision making by federal district court judges. Focusing on search and seizure cases, we analyze nearly 1500 motions to

suppress evidence from 2000 to 2022. In addition to controlling for judicial ideology and a judge’s prior experience as a

prosecutor or public defender, we utilize matching to address endogeneity concerns related to one’s ability to self-select into

one of these positions—which may itself be inf‌luenced by that individual’s ideological predispositions. We f‌ind tha t having been a

former prosecutor, as well as the length of time that service spans, makes a judge signif‌icantly more likely to rule against a

motion to suppress. Former public defenders are signif‌icantly more likely to grant that suppression motion, though their

propensity to do so is not affected by the length of time served in that capacity.

Keywords

judicial decision making, social background theory, prosecutors, public defenders, federal district judges

Many progressives view the courts as being inhospitable fora

for the accused. This skepticism is an outgrowth of multiple

arguments, but a primary one rests on two reinforcing factors

related to the identity of those in charge of the proceedings:

federal judges frequently possess prosecutorial experience,

but there are far fewer former public defenders on the bench.

To people like Chris Kang, a former Obama adviser on ju-

dicial selection who now heads a progressive judicial reform

organization, one contributor to this imbalance is a double

standard about the relationship between professional back-

ground and one’s perceived capacity for fairness on the

bench. As he puts it, “almost nobody ever asks a prosecutor or

a corporate lawyer whether or not they could be fair, as if

those are neutral professions or neutral sorts of perspectives”

(Serino, 2022). Others have emphasized the importance of

having a range of professional perspectives on the courts. As

one example, former U.S. District Judge Nancy Gertner

credits her criminal defense background with giving her a

unique perspective from which to ask questions and make

observations. “I added the experience”she said, “of walking

into the courtroom with your client and walking out of the

courtroom with him in chains”(Alder, 2021).

This empirical reality, which has traditionally character-

ized judicial selection by presidents regardless of political

party, is not new.

1

Yet many, especially on the political left,

echo famed civil rights attorney William Kuntsler’s view that:

“concentrating on prosecutors’off‌ices as a source of judicial

talent”not only “belie [s] the appearance of equal justice, but

it also reinforces the widespread notion that the Establishment

maintains its control by seeing to it that those who once

enforced its laws become the judges of those accused of

violating them”(Kuntsler, 1986). More than three decades

after Kuntsler’s observation, approximately four former

prosecutors sit on the federal bench for every one judge with

some sort of criminal defense background (Neily, 2019).

Just prior to President Joe Biden’s inauguration, incoming

White House Counsel Dana Remus announced that the new

administration sought to change that imbalance,especially in

the trial courts that effectively have the conclusive word on

virtually all federal cases: “With respect to U.S. District Court

positions, we are particularly focused on nominating

1

Political Science Program, School of Economic, Political and Policy Sciences,

The University of Texas at Dallas, Richardson, TX, USA

2

Department of Political Science and International Studies, Georgia Southern

University, Statesboro, GA, USA

Corresponding Author:

Brett Curry, Department of Political Science, Georgia Southern University,

Box 8101, Statesboro, GA 30460, USA.

Email: bcurry@georgiasouthern.edu