A Bureaucratized Bench

This is hardly news and we are hardly alone in taking critical note of it. Both former Chief Justice Rehnquist and the current one, Roberts, have complained about it in their respective State of the Judiciary statements. The problem is that new judges are increasingly coming from the public sector and fewer and fewer come from private practice. At the federal level, Chief Justice Roberts notes that only 40% of new federal judges come from private practice. Out here in California, it’s a lot worse than that.

In the most recent batch of judicial appointments by Governor Arnold Schwartzenegger, which is fairly typical, only one out of eleven newly appointed Lordships comes from private practice. The rest are former Deputy District Attorneys and Public Defenders, with a couple of court commissioners thrown in. See Schwartzenegger Appoints Eight to Los Angeles Superior Court, [Los Angeles] Metropolitan News-Enterprise, July 17, 2009, at p. 1.

Thus, by degrees our bench is becoming packed with government lawyers who often tend to see the government as a benign force and view with suspicion those who litigate against it. Which poses obvious problems to condemnees who have to depend on judicial impartiality in presiding over jury trials in eminent domain cases, particularly when judges get to make factual determinations and discretionary rulings. At least in criminal cases, former prosecutors are balanced to some extent by former public defenders. But not in eminent domain cases in which judges whose sensibilites were formed during years of service as government lawyers, often view the condemnees’ submissions with skepticism or outright hostility, thus undermining the perception of judicial impartiality.