Some people might be inclined to dismiss the federal judiciary’s imbalance between former government advocates and former government opponents as irrelevant. After all, judges take an oath to be impartial and to faithfully apply the laws and the Constitution in each case, regardless of the outcome. But this blinks at deep‐​seated and empirically valid intuitions that most people have about the potential for bias created by an adjudicator’s past experiences—especially experience that involves advocating for a particular institution or cause. Consider the following illustrations:

Imagine you wanted to sue your doctor for medical malpractice, but you were required to pursue that claim through private arbitration instead of the courts, as is increasingly common. Now imagine you can decide between two different arbitration firms. The first one hires arbitrators from all different legal backgrounds, including lawyers who used to sue doctors in medical‐​malpractice cases and lawyers who used to defend doctors in those cases. The firm also makes it a point to ensure that its arbitrators are not disproportionately drawn from any particular legal specialization or orientation (i.e., plaintiff‐​side versus defense‐​side). By contrast, the second arbitration firm goes out of its way to hire former medical‐​malpractice defense lawyers, who are therefore significantly overrepresented within that firm’s ranks. Can there be any doubt as to which arbitration firm you as a medical‐​malpractice plaintiff would choose to hear your case? Indeed, wouldn’t it be absurd to suggest to someone in your position that they simply flip a coin to choose between the two firms, given that all arbitrators take an oath to be neutral—so who cares whether the arbitrator assigned to your case used to sue doctors or defend them earlier in her career?

Or imagine you’re a diehard Ohio State football fan, and every time the Buckeyes play the Wolverines, three or four of the seven referees on the field are Michigan alums, while only one is an Ohio State alum. You’d most likely prefer a more balanced officiating crew because even though referees are required to be neutral, there are many close calls in football, and it’s reasonable to suppose that even the most conscientious referee might tend to shade those calls in favor of his alma mater. And of course, as any football fan knows, one call can decide a game—or even a whole season.

Here’s a final illustration that cuts closer to home. Imagine you’re a former criminal defense attorney who gets called for jury duty in a drug‐​dealing prosecution. Your chances of being seated on that jury are slim to none. Why? Because the prosecutor will most likely use one of her “peremptory” challenges to keep you off the jury on the entirely reasonable assumption that, in light of your professional background, you are likely to have certain biases and predispositions that will tend to color both your perception and your assessment of the prosecution’s case.