To restore separation of powers, start with who becomes a judge

The federal judiciary is supposed to be the referee in our constitutional system. Yet over the decades, the professional backgrounds of federal judges have tilted hard toward one team: the executive branch. Presidents of both parties routinely nominate lawyers who built their careers advocating for the executive branch, having served inside the Justice Department, the White House, or federal agencies.

That pipeline produces highly credentialed professionals. It also produces judges whose instincts, assumptions, and worldview give deference to the presidency.

This imbalance isn't just a résumé quirk. It is a structural problem for our democracy.

Judges who spent formative years inside the executive branch naturally absorb its perspective. That's not partisanship--it's an institutional imprint. And because modern presidencies relentlessly accumulate power, a judiciary steeped in executive branch experience becomes an institutional ally.

The skew is stark. Seven of the nine sitting justices built their careers in the executive branch. Consider the current Court: Chief Justice John Roberts served as Associate White House Counsel and Deputy Solicitor General. Justice Samuel Alito worked as a U.S. Attorney, in the Solicitor General's Office, and led the Office of Legal Counsel. Justice Elena Kagan was Solicitor General. Justice Neil Gorsuch held senior leadership roles at the Justice Department. And Justice Brett Kavanaugh spent years in the White House Counsel's Office and in the Solicitor General's Office.

Of the remaining justices, only Clarence Thomas has any legislative branch experience--two years' experience with Sen. John Danforth before service at the EEOC. Justice Ketanji Brown Jackson served as a federal public defender and on the U.S. Sentencing Commission. Justice Sonia Sotomayor's early career included time as a prosecutor in the Manhattan District Attorney's Office. Justice Amy Coney Barrett is the only member of the Court without significant experience in either branch.

It is nearly impossible to find a modern justice whose formative experience came in Congress. The last justice with major legislative experience is Stephen Breyer, who served as chief counsel of the Committee on the Judiciary; he also held roles in the Executive branch.

In the lower courts, former prosecutors have become the dominant pathway to the federal bench. The Cato Institute, for example, found that ex-prosecutors outnumbered public defenders and other defense attorneys four-to-one. There is every reason to believe the same imbalance exists between nominees with executive backgrounds and those with legislative ones. The result is that people with serious legislative experience--former committee staff directors, counsel to congressional leadership, senior aides on major committees, attorneys in legislative support agencies like GAO and CRS--rarely make the shortlist.

Here's the deeper problem: the Senate has never been good at filtering nominees based on judicial philosophy to construct a balanced bench. Swing senators are reluctant to reject a nominee over ideology alone. The lowered Senate confirmation threshold empowers presidents to push through ideological warriors with relative ease, so long as their party holds the majority.

But while the Senate struggles to evaluate ideology, it is comfortable placing guardrails on who can advance. Senators from both parties rely on home-state "blue slips" to bless or veto candidates whose experience and ties fit local expectations. That same instinct--evaluating the pipeline, not the philosophy--can be used to rebalance the judiciary's institutional perspective.

To bring a better balance to judicial philosophy, the Senate Judiciary Committee can adopt a fix that requires no change in the Constitution, federal law, or Senate rules: for every judicial candidate with senior executive branch experience, the Senate Judiciary Committee should demand another nominee with substantive legislative branch experience.

This isn't about ratios within a class of nominees; it's about achieving a healthy long-term balance in the federal judiciary as a whole. The Committee can communicate this expectation to the White House clearly in advance, and have members of both parties keep score--and negotiate--over what qualifies as substantive legislative experience.

A federal judge who has spent years on Capitol Hill--drafting legislation, working through statutory text, negotiating oversight demands, or managing appropriations--brings something critically missing from today's courts: an understanding of how Congress actually works and an appreciation for Congress's prerogatives. They know that statutes reflect compromise, not perfection. They appreciate the difference between congressional silence and congressional intent. They understand the practical burdens Congress faces in carrying out its responsibilities. And they are far less likely to treat Congress as an afterthought.

Critics might say that legislative staffers lack courtroom experience. But that argument falls flat. No one is born knowing how to be a judge. For that very reason, the Federal Judicial Center runs a wide range of training classes for new judges and those who wish to brush up their skills. Moreover, federal judges should not represent a monoculture of senior White House aides and Justice Department lawyers. The real difference isn't judicial experience; it's perspective. And right now, that perspective is dangerously one-sided.

Balancing institutional backgrounds is a commonsense approach to addressing the unfortunate trends we see in federal judicial rulings. Congress was never meant to outsource the interpretation of its statutes--and the Constitution--to hand-picked avatars of the very branch those statutes are meant to restrain. A judiciary that reflects both the executive and legislative worldviews is more likely to respect the boundaries between the branches and guard against presidential overreach.

The Senate doesn't need to wage ideological war to do this. It doesn't need to interrogate nominees over their politics. It simply needs to demand a judicial nomination pipeline that reflects the full range of institutional experience in our government.

Editor's Note: In the aftermath of Watergate, Congress enacted sweeping reforms to restore public trust and strengthen accountability, including campaign finance rules, the creation of the Federal Election Commission, the Ethics in Government Act, and the War Powers Resolution--measures that reshaped the balance of power and continue to shape American governance five decades later.

Against that backdrop, the Daily Journal invited constitutional law professors, legal historians, and good-government advocates--experts in constitutional structure and reform from across the ideological spectrum--to answer a timely question: If Congress were to enact a new round of reforms today, meant to endure for the next 50 years, what one reform would you propose, and why? This is the third installment in a six-part series.