Challenging the Notion of Court Neutrality: An Empirical Study of the Role of Former Prosecutor Judges in Upholding Qualified Immunity within the US Court of Appeals

Abstract

Diversity within the United States federal court system has been a source of controversy since the rights revolution of the 1960s. In addition to women, people of color, and LGBTQ+ individuals, one subsection of the potential judging population has remained consistently underrepresented: Public Defenders. While prosecutors and other government advocates continue to be overrepresented on the judiciary, their peers who work in individual advocacy as public defenders and attorneys for civil rights groups have historically been disregarded as nominees, largely because of the political costs associated with aligning oneself with defense litigation. Despite this glaring disparity, there has been a dearth of research into whether the professional backgrounds of judges influence their judicial decision-making. This thesis seeks to address the gap in research regarding this topic by identifying whether the presence of prosecutor and defender judges on three-judge panels of the United States Court of Appeals has a causal effect on the outcome of cases. My focus is on qualified immunity cases, as recent criticisms have laid bare the issue that qualified immunity may be utilized by public officials as a tactic to circumvent accountability for wrongdoing. As a legal doctrine, qualified immunity was created to be upheld by the judiciary. Since judges that were formerly prosecutors enjoy a similar doctrinal immunity to qualified immunity, they may disproportionately vote to strengthen immunity against civil lawsuits among other public officials. The central hypothesis I bring forth is that prosecutor judges on the Court of Appeals are more likely to vote pro-qualified immunity on an individual level, and the presence of prosecutor judges on panels influences their co-panelists, making their formal rulings more likely to be pro-qualified immunity. I test my hypothesis by assessing the impact of professional background, among other variables including race, gender, and partisanship, on judicial decision-making within Court of Appeals panels deciding on whether or not to grant immunity. To do this, I created two novel datasets of appellate qualified immunity cases and performed quantitative analysis on case holdings and voting behavior. Ultimately, I find that prosecutor judges are more likely to vote proqualified immunity and that the presence of a prosecutor judge increases the likelihood that a panel will vote pro-qualified immunity. These findings have critical implications for future policy decisions and demonstrate the need for presidents to increase the representation of public defenders among their judicial nominees in order to cultivate less partial decisional outcomes.