For the last decade, advocates and policymakers have increasingly highlighted a startling lack of professional diversity on U.S. federal courts. Studies have found that former prosecutors and corporate attorneys are vastly overrepresented on the federal bench, especially relative to public interest lawyers such as public defenders and civil legal aid attorneys. In response to these reports, the Biden administration has made a historic effort to seat more judges from underrepresented backgrounds, nominating record numbers of judges from both racially and professionally diverse backgrounds.
Despite these important efforts at the federal level, the vast majority of judicial cases–approximately ninety percent – take place at the state level. Whether they are involved in state criminal cases, premises liability claims, custody disputes, eviction cases, or anything in between, the majority of people involved in the justice system will appear before state judges. However, in Connecticut there has been little advocacy around professional diversity similar to that at the federal level, until now. The UConn Law chapter of the People’s Parity Project (PPP) recently launched the CT Pro-People Judiciary Coalition, joining legal advocates, disability rights groups, community organizations, and plaintiffs’ law firms in an effort to diversify the state judiciary.
These groups have not come together for a simple box-checking exercise. Empirical studies have shown that judges’ professional backgrounds can have significant impacts on the outcomes of the cases before them–and on the people that the coalition represents. These studies have shown that defendants in criminal cases lose more often and receive longer prison sentences when they appear before former prosecutors relative to judges with other experience. Former corporate attorneys and prosecutors were also found to side with corporations over their employees in employment disputes such as discrimination and wage theft cases.
With these disparities in mind, PPP UConn conducted a review of the professional backgrounds of judges serving in the Connecticut judiciary and released a report of their findings last Spring. The report documented similar disparities to those found in the federal judiciary. About 60% of judges in Connecticut were found to have either corporate or prosecutorial experience. By contrast, all judges with experience representing individuals rather than corporations or the state, such as civil legal aid, public defense, family law, and plaintiffs’ litigation represented less than one-fifth of the state bench. On the Appellate and Supreme Courts, representation was even worse, with 75% of judges having prosecutorial or corporate experience.
Considering the study findings on professional diversity and outcomes for individuals, the study also highlighted recent cases where a more balanced bench may have changed the outcome. The Connecticut Supreme Court, in split decisions, recently sided with the government on what constitutes a coerced confession in a criminal case–police threatening to unjustifiably arrest family members, lying about a defendant facing the death penalty, and falsely stating that the defendant may face a lesser charge for cooperating are fine–and sided with corporations on whether arbitration is equivalent to a trial on the merits, among other important decisions.
Since the report’s release, the appellate courts have become even more skewed. The departures of Justices Christine Keller and Maria Araujo Kahn from the Connecticut Supreme Court have left the appellate courts without a single judge with public defense or legal aid experience. After Justice Keller was replaced by another former prosecutor last year, the vacancy left by Justice Araujo Kahn has become the focus of the coalition’s attention. The Connecticut Supreme Court is the final arbiter of what the state’s law actually means, wielding incredible power over the people of the state, but there are currently no justices with public defense or legal aid backgrounds, some of the legal experiences that bring attorneys closest to the people most intimately impacted by the state’s laws.
Reflecting on Justice Thurgood Marshall’s legacy, many of his colleagues acknowledged the importance of his personal experience and professional background in civil rights and criminal defense to his approach to the law and additions to the U.S. Supreme Court’s deliberations. Justice William Brennan stated that Marshall “spoke from first-hand knowledge of the law’s failure to fulfill its promised protections for so many Americans.” Now is the time for a Thurgood Marshall on the Connecticut Supreme Court. Despite their best efforts, judges cannot help but bring their prior experiences to their deliberations and analyses, and the only way to ensure justice for the people is to include a diversity of viewpoints on the bench. Just as Governor Dan Malloy committed to increasing the demographic diversity of the state bench so that it represented the makeup of the state, we call on Governor Ned Lamont to commit to increasing the diversity of experience on our courts. The best place for him to start is with the current Supreme Court vacancy, nominating a judge with public interest experience, so that Connecticut can start to build the pro-people judiciary that it deserves.