Judges could use legislative experience

A recent report by the Alliance for Justice is right to urge greater diversity in the professional background of judicial nominees.  But it fails to acknowledge an enormous relative shortfall in legislative experience among judges, one reflected more broadly in the legal community’s top ranks.  This legislative experience gap is one that a law clerk program in Congress would begin to correct. 

A lawyer’s professional experiences — especially their first jobs — are immensely influential on their views of the law, who gets to make it, and all of us who live in its shadow. The Alliance for Justice report argues that a disproportionate share of judicial nominees have prosecutorial and corporate law backgrounds. The report calls for more nominees who have worked in the public interest. 

{mosads}I agree.  But the report defines public interest and limits its analysis in ways that do not detect the legislative experience gap.  Commentary on the report by the New York Times and others misses the issue, too.  That is unfortunate.

Most law today is statutory and regulatory law based on statutes, and therefore interpreting legislation is often the bread and butter of legal work.  Understanding statutes is also challenging because legislative lawmaking is complicated and so different than the judicial and transactional processes in which law students and new lawyers are traditionally trained.  Learning-by-doing is the best way for lawyers to learn anything, and especially legislation.  Together, these three realities place a premium on lawyers and future judges acquiring legislative experience.  Yet all but a small fraction of the legal profession lacks it. 

An empirical study I conducted at the end of the Bush Administration found that just 14 percent of sitting federal jurists on the U.S. Supreme Court and the appellate circuit courts had legislative employment experience – that is, work in a legislature of any kind as an elected legislator or staff member.  In contrast, about nine in 10 on the appellate bench had previous private practice experience, eight in 10 had been a judge in another court or a judicial clerk, and seven in 10 had served in an executive government agency (particularly as prosecutors).    

This cavernous legislative experience gap on the bench yawned wider still among academics and top lawyers nationwide. 

Just five percent of professors at the Top 20 law schools as ranked by U.S. News & World Report had legislative experience (and one elite law school had not one tenure-line faculty member who had worked for the legislatures that write our laws).  Meanwhile, private practice or judicial experience (often as a clerk) were about 10 times as common as legislative experience.  Work experience in an executive branch agency was nearly six times as common. 

A second study I published in 2010 revealed that among the top 500 lawyers nationwide as ranked by Lawdragon.com, just one in 25 had legislative experience.  For comparison, roughly one in four of the lawdragons had held other private practice, executive agency, or judicial positions. 

I plan an update to my 2008 and 2010 studies, but so far have seen few indications that the legislative experience gap is closing. 

My research has shown that there are qualified candidates for the bench who have legislative experience.  The White House should nominate and the Senate confirm more of them. The result would be greater experiential diversity and statutory expertise on the bench.

But a demand-side, court-centric approach will not close the legislative experience gap on its own.  The gap goes beyond the courts. 

The President, Congress, and the legal community must also grapple with the supply side: the relative inaccessibility of legislative experience for lawyers in their apprenticeship years, compared with the alternatives.

Today, courts, executive branch agencies, firms, and law schools have well-established legal apprenticeship programs designed for new lawyers.  They mentor young legal eagles, harness their abilities and energy, and along the way shape their views of the law and constitutional norms.  Congress – the Constitution’s first branch, and the primary author of federal law — is unique among the nation’s major legal institutions in not having a program that is comparable in accessibility, schedule, compensation, and prestige.  

Without a readily available supply of legislative experience, new law graduates and their employers tend not to demand, appreciate, nor encourage it in future generations of lawyers.

An important step toward breaking this cycle is passage of S. 1458.  This bipartisan bill would create legislative clerkships at the Capitol similar to the judicial clerkships across the street at the Supreme Court.  It has twice passed the U.S. House and has been re-introduced in the Senate by Senator John Hoeven (R-ND), Ranking Member on the Senate Appropriations Legislative Branch Subcommittee, and by Senate Judiciary Committee Chairman Patrick Leahy (D-VT).  In the House, Reps. Peter King (R-NY) and Zoe Lofgren (D-CA) have circulated the bill for cosponsors prior to re-introduction.

Rather than hiring last minute based on professional networks, policy work, or political experience – the default hiring model on Capitol Hill – Congress’s law clerks would be hired well in advance on the same schedule as judicial clerks.  They would be paid equivalently.  Congress can offset the relatively modest $1 million cost. 

Congress’s law clerks would be “keepers of the U.S. Code.”  Their main focus would be legal research, drafting legislative text and report language, and analyzing Congress’s complex rules of procedure.  This core legislative legal work often gets too little attention in fast-paced Hill offices.  Members and staff would quickly come to appreciate the clerks’ focus on legislative process and products, and the confidentiality of the attorney-client relationship.

The Hoeven-Leahy bill, S. 1458, establishes 12 clerkships, equally divided between chambers and parties.  Congress can use a placement model common to congressional fellows programs: potential clerks would apply first to be part of the program, and then once selected would interview stipend-in-hand with interested committee and Member offices.     

In letters to Congress, the deans of 120 law schools and dozens of legal luminaries (including White House counsels for Presidents Reagan, Clinton, and Bush, and academics across the political spectrum) have urged creation of a congressional clerkship program as a means of closing the legislative experience gap my research has documented.  They emphasized a larger constitutional point as well.  To quote the Legal Luminaries Letter: “the lower incidence of legislative work experience within the profession’s most influential ranks…has likely contributed to the generational slide in appreciation for Congress’s constitutional role compared to the roles of the judiciary and executive branch.” 

In other words, legislative experience – legal leaders having it and new lawyers getting it – is very much a matter of public interest. 

It ought to be a desirable judicial nominee qualification, and is a strong argument for S. 1458’s congressional clerkships.  Cycling the legal community’s future leaders through year-long legislative clerkships could do as much for Congress constitutionally over the long term as it would more practically in the near term for the clerks, their employers in Congress, and their future clients.  Ultimately, everybody stands to gain from lawyers acquiring deeper appreciation for the legislatures that write the law and keep it accountable to the people. 

Rudesill is assistant professor of Law at Ohio State’s Moritz College of Law.  He did legislative work for the U.S. Senate for nearly nine years.  He teaches legislation and national security law.