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As brought up in this question, there appears to be a growing group of headlines tonight focusing on the fact that someone who has never tried a case is being nominated for federal judge.

I know very little of the history or workings of the federal courts... and just wondered to what degree it is extraordinary to see this happen. You would think articles would address this, given that it completes the context of the headline. Here is a quick sample of headlines from large organizations:

But after reading a few of the stories, I gave up, having found nothing further discussing the historic precedence.

So...

  • Has this never happened?
  • Did it only used to happen in the early days of the country?
  • Are there one or two every few decades?
  • Or is it fairly common?

Please do not debate the quality of Talley's extended qualifications, nor the larger theme regarding Trump's history of nominating inexperienced individuals, as those are not generally the central claim that was in early headlines. Subsequent disclosures of ties to the Trump campaign may well be a noteworthy story, but are likewise unrelated to the candidate's court experience. I am only interested in how rare it is to nominate judges without case experience.

For background, I have no political axe to grind in this question, but am only a skeptical person interested in validate/verify stories when they appear to have loaded claims. For me at least, it feels like a growing percentage of headlines (from all directions) tends to be sliding more and more into misleading wording or fake shock. I see this often in meteorology (example), so this is not focused on political subjects. But in the end, regardless of your position on media, my interest in this question is to help people searching obtain a baseline for whether such a judge would be extraordinary (nor or in the future). So let's stick to that.

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    Elena Kagan was nominated but never confirmed in 1999 without ever trying a case. I suspect that she still has never actually tried a case. As Solicitor General (2009), she would only have worked appeals. Mostly noteworthy in that the ABA said she was "qualified" in 1999 despite that lack of experience. Hopefully someone will find a more comprehensive list of such nominees. Stephen Breyer has never tried a case as a lawyer. Can't say either way on Kennedy and Thomas. Roberts only appeals. – Brythan Nov 11 '17 at 8:34
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    @Brythan -should be an answer – user4012 Nov 11 '17 at 12:17
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    @user4012 I don't think that a sample size of nine is sufficient for this question. Particularly considering that there isn't a real canonical data source for citations. Kagan is the only one for whom it was a big enough deal that it could be cited. Someone should be able to answer the real question: how common is it? I can only reject the "Has this never happened?" and "Did it only used to happen in the early days of the country?" possibilities. I don't want to drown out a real answer with this sort of half answer. – Brythan Nov 11 '17 at 19:02
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    An appeal is a case. And, the bio of Breyer indicates that he did have trial litigation experience. Also appellate litigation experience is especially useful to an appellate judge, while trial experience is especially useful to a trial judge. – ohwilleke Nov 14 '17 at 1:52
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    Elena Kagan was the govt's chief advocate before the Supreme Court and had to recuse herself from cases after she was appointed because she had worked on them. If that doesn't count as "trying a case", I don't know what does. In either case, nominating a solicitor general - someone whose job is to work with the law and the court - doesn't establish precedent for nominating a blogger with none of that experience, whose only qualification is literally just being an ideologue. – J Doe Nov 15 '17 at 20:07
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Elena Kagan

In 1999, Bill Clinton nominated Elena Kagan to be on the United States Court of Appeals for the D.C. Circuit. However, as late as 2009, when she was nominated for Solicitor General, NPR says:

She had never argued a case in the Supreme Court — or any other court, for that matter.

Kagan was born in 1960 (April 28th), so she was 39 when nominated to be a judge (June 17th). She had spent the previous five years as part of the Clinton administration, in a policy role starting in 1997.

Note: to be clear, Elena Kagan had never tried a case in any court. She had never been a judge, so she had never tried a case in the sense of hearing it (and arguably she still hasn't, as the Supreme Court leaves trying cases to lower courts; it only hears appeals). And since she never argued a case at any level, she never tried a case in the sense of litigating it as one of the lawyers (prosecution, defense, etc.). Arguably she still hasn't, as she only argued before the Supreme Court as Solicitor General.

This is an obvious case, set within the last twenty years. I have no idea if it is common, but I wouldn't trust someone saying that it is not common who does not even acknowledge this one case despite replying to a comment noting it. Particularly as that person misrepresents Talley's seven years of experience practicing law (one more than Kagan's six in 1999; one less than Kagan's eight in 2010) as three years.

None of this is to say that Brett Talley and Elena Kagan are or are not qualified to be a judge. I'm just pointing out that it is by no means unique for a candidate who is personally liked by members of the administration to be nominated with minimal experience.

  • This isn't an answer. It's saying "I have no idea, but I'd like to discredit a different answer..." Which, BTW, I don't know how one additional example discredits the idea that it's not common. (And that's not even getting into the whole issue that none of the headlines even implied that in the first place...) – user1530 Nov 15 '17 at 23:45
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    It shows that "I have not located anyone appointed to the federal bench with less experience at a lawyer, at any time, and no one close in modern history." is incorrect. Kagan had less experience in 1999 and is certainly a modern example. And I would agree that this is only a partial answer (yes, it has happened previously and modernly), but at least it is not factually incorrect or actively misleading as the other two answers are. Frankly, given your "answer", I don't see how you could criticize anyone for not answering this question. – Brythan Nov 16 '17 at 4:13
  • Feel free to critique my answer. I have no issues with that. I was merely offering critique of this answer. I don't dispute your findings...only your conclusion that "you wouldn't trust someone saying it's not common" based on only one other case. That, itself, would seem to indicate it absolutely is not common if we can only find two examples. – user1530 Nov 16 '17 at 15:21
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An approximate answer

It is exceedingly rare, if it has ever happened, for a lawyer with less than three years of experience whose only courtroom experience is serving as third chair lawyer in a hearing to be appointed as a U.S. District Court judge.

Overwhelmingly, these federal trial court judges are only appointed after they have considerable experience as lawyers and made a reputation for themselves as trial court litigators (most often as prosecuting attorneys).

Lawyers with little trial court experience, such as lawyers whose primary experience is as an appellate litigator or as an academic are sometimes appointed to serve as appellate judges where familiarity with trial practice is not at as much of a premium. But, it would still be unheard of to appoint a lawyer with less than three years of experience to an appellate court.

While I won't say that this has "never" happened, if it has ever happened, you can probably count the number of cases on your fingers.

Location of source data

A complete data set is available in the Federal Judicial Center's Biographical Directory of Article III Judges. A list of all federal judges who were nominated but not confirmed can be found here. There were 352 federal judges who ultimately took office who were nominated prior to January 1, 1888 (roughly speaking before intermediate appellate courts were established). There are 3,241 federal judges who ultimately took office who were nominated after that date.

I don't have the capacity to do a full analysis of that data and have not been able to locate an analysis of this data in the literature although I am sure that there is one somewhere.

Norms

One can judge how unusual or not this practice is, in the absence of a full analysis of the entire data set, by considering statutory and bar association norms regarding legal experience for judges.

Bankruptcy judges are required to have five years of experience as a lawyer, but no similar requirements exists for other Article III judges. State court magistrates in Colorado are required to have five years of experience as practicing lawyers (most have more) as do most other judgeships (like some other states part-time limited jurisdiction court judges in a few rural counties are not required to be lawyers in Colorado, about four are not, but every state requires judges in general jurisdiction courts to be lawyers and this is also an almost universal norm in the federal judicial system).

The American Bar Association benchmark for serving as a federal judge in evaluations it has done of every federal judicial nominee since 1953 has been to expect 12 years of experience as a lawyer. The ABA Standard on Professional Experience reads as follows:

A candidate should be a licensed, experienced lawyer.

A candidate should be admitted to practice law in the jurisdiction. The length of time that a lawyer has practiced is a valid criterion in screening candidates for judgeships. Such professional experience should be long enough to provide a basis for the evaluation of the candidate's demonstrated performance and long enough to ensure that the candidate has had substantial exposure to legal problems and the judicial process.

It is desirable for a candidate to have had substantial trial experience. This is particularly true for a candidate for the trial bench. Trial experience includes the preparation and presentation of matters of proof and legal argument in an adversary setting. The extent and variety of an candidate's experience as a litigator should be considered in light of the nature of the judicial vacancy that is being filled. Although substantial trial experience is desirable, other types of legal experience should also be carefully considered. An analysis of the work performed by the modern trial bench indicates that, in addition to adjudication, many judges perform substantial duties involving administration, discovery, mediation and public relations. A private practitioner who has developed a large clientele, a successful law teach and writer or a successful corporate, government or public interest attorney all may have experience which will contribute to successful judicial performance. Outstanding persons with such experience should not be deemed unqualified solely because of lack of trial experience. The important consideration is the depth and breadth of the professional experience and the competence with which it has been performed, rather than the candidate's particular type of professional experience.

For a candidate for the appellate bench, professional experience involving scholarly research and the development and expression of legal concepts is especially desirable.

Violations of the ABA norms in the nomination process in modern history is very uncommon. This letter in opposition notes that:

[T]he ABA panel evaluating Talley’s nomination has unanimously agreed that he is not qualified to be a federal judge. It is hardly common for a judicial nominee to be deemed unqualified by a majority of the ABA panel. But unanimous agreement on such a devastating evaluation is exceedingly rare. In the 28 years of nominee evaluations on the ABA’s website, this is only the fourth time. (The third time was just a couple of weeks ago, with another Trump nominee.)

The other three candidates unanimously deemed unqualified by the ABA Committee all had more experience than Talley. The other Trump nominee unanimously rated as unqualified had 11 years of experience as a deputy attorney general and many more years in private practice.

Historic practice

General background on the process and its history can be found here.

It gets harder to analyze the cases as you go further back in history, because the nature of the position and the nature of what it means to be a lawyer have shifted a great deal.

For example, while there was somewhat organized legal instruction very early in U.S. history on an isolated basis, the modern law school model pretty much dates to the 1870s. Instead, most U.S. lawyers would "read law" as an apprentice to an experienced attorney.

Also, many federal judges and members of Congress in the early period didn't serve for long because other positions were more prestigious when the federal government was comparatively unimportant.

For example, Powhatan Ellis who served as a federal district court judge for Mississippi (chosen at random) had four years of experience as a lawyer in private practice from 1813-1817 (he started his private practice a year before finishing his legal education), then served on the Mississippi Supreme Court for eight years from 1817 to 1825, then served six of the next seven years as a U.S. Senator (1825 and 1827-1832) when that position was appointive, then served as a federal district court judge for four years (1832-1836), then served six years as a diplomat to Mexico (1836-1842), and then spent his next twenty-one years until his death as a lawyer in private practice, first in the United States and then in the Confederate States of America. Assuming that time as a judge counts as time spent practicing law, he had twelve years of experience before serving as a U.S. District Court judge, but the circumstances in the pre-modern period are hard to compare to the situation today.

I have not located anyone appointed to the federal bench with less experience at a lawyer, at any time, and no one close in modern history.

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    Other than the opening and unsupported assertion that "Overwhelmingly, these federal trial court judges are only appointed after they have...made a reputation for themselves as trial court litigators", there is nothing in this wall of text that answers the question. It reads more like a political argument than a factual answer. – Readin Nov 14 '17 at 4:44
  • @Readin I've clarified the purposes of different parts of the answer with headings. Since it wasn't possible to locate an exact and complete answer I provided information on where to find the authoritative answer, on prevailing norms about judicial appointments that shed light on how common this is, and on historic practice which may have been quite different in the pre-modern area and also was less well defined. – ohwilleke Nov 15 '17 at 15:12
  • @ohwilleke, fantastic answer, I really you taking the time to give such a thorough background. I feel like by giving us the full resources on past and unconfirmed judges to answer the question statistically, adding the background context of requirements at other judiciary levels, and then displaying rather thorough knowledge of the judicial system, underpinning your own estimation, you did everything and more in lieu of an actual empirical analysis, and once more I am grateful for the fantastic context to support the headlines. Thank you once more, an example of what SE is all about :-) – JeopardyTempest Nov 15 '17 at 22:14

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