Will Biden Alter the Judiciary and Diminish The Grip the Federalist Society Has on Recommending Judicial Nominees?

Biden Under Pressure to Revamp the Judiciary

Originally published: Dec. 24, 2020 | Republished by LIT: Dec. 26, 2020

Activists who watched President Trump fill the courts with conservative judges for four years are pushing President-elect Joe Biden to prioritize judicial confirmations and to bring more professional diversity to a judiciary dominated by former prosecutors and corporate lawyers.

Progressives argue that appointing more jurists who have spent their careers as public interest or civil rights advocates would help level the playing field in a legal system that favors the wealthy and powerful, which has been heavily shaped by Trump and Republicans over the past four years.

The effort is an ambitious push to change the traditional career path that leads to a lifetime appointment on the federal bench — and a project that could potentially be thwarted if the Senate remains in the GOP’s hands.

Many sitting federal judges spent their early legal careers as criminal prosecutors, as partners at prestigious law firms representing corporate clients, or both. Surveys have shown that judges with those backgrounds greatly outnumber judges who have spent their careers as public defenders, civil rights advocates or labor and consumer lawyers.

Progressives believe that the disparity has made it harder for certain types of litigants to get a fair shake in the justice system, tilting it against criminal defendants, labor unions, consumers and environmental activists.

Former Sen. Russ Feingold, the president of the American Constitution Society (ACS), a progressive legal organization with local chapters across the country, says that he has been hearing calls from the group’s own members to push for a different approach to picking judicial nominees.

“After decades of frustration, as the courts become more and more conservative, and more and more deferential to the powerful moneyed interests in our country, a lot of hard-working lawyers who don’t make a lot of money have had it,” said Feingold, who spent 18 years as a Democratic senator representing Wisconsin. “They’re saying, ‘Why is it that we work hard, and we make our arguments and that somehow we have to go before judges who don’t have the experience of being on this side of the bar?’ ”

ACS has sent Biden’s transition team a list of 352 potential nominees to the district and appellate courts. The group would not provide any of the names on the list, citing a desire for confidentiality among those who were recommended, but said that about a quarter of them were government or legal/aid lawyers and another 24 percent were civil rights or plaintiffs attorneys, with potential overlap between the two groups.

The New York Times first reported about the list.

“Joe Biden proudly championed the historic confirmations of Justices Ginsburg, Sotomayor, and Kagan, and reshaped the Senate Judiciary Committee to reflect the diversity and breadth of America,” Jamal Brown, a spokesman for Biden’s transition team, said in an emailed statement. “As president, he will nominate the first Black woman to the Supreme Court, and appoint judges who share his commitment to the rule of law, and upholding individual civil rights and civil liberties.”

Other groups, like the progressive judicial advocacy organization Demand Justice, have gone as far as calling for a complete moratorium on former corporate lawyers on the federal bench, arguing that the imbalance has shaped the law in favor of big business over the years.

“Donald Trump has spent four years making the courts even more biased in favor of the rich and the powerful and against criminal defendants and individuals,” Christopher Kang, a co-founder of Demand Justice and former deputy White House counsel under Obama, said in a statement to The Hill.

“President-elect Biden has an opportunity to begin to undo that damage by appointing diverse judges who understand the challenges real people face in our legal system because they have spent their careers representing them,” Kang said. “By prioritizing appointing public defenders, civil rights lawyers, labor lawyers, plaintiff’s lawyers, and other champions for justice, President-elect Biden can move us towards a justice system that represents all of us.”

Biden will face significant challenges when it comes to judicial confirmations. For one, he will enter office with fewer court vacancies than Trump had in 2017, though there is a possibility of a surge in retirements from Clinton-era judges who want their replacements picked by a Democratic president.

Post Edited: Derobing the Unconstitutional Epstein 3-Panel. The Eleventh Circuit Vacates their April Ruling and https://t.co/BxwZO960b6

— LawsInTexas (@lawsintexasusa) December 26, 2020

And the efficacy of Biden’s judicial confirmation project will likely hinge on next month’s runoff races for two Georgia Senate seats that will decide which party will control the upper chamber.

The nation’s circuit court judges, who sit just below the Supreme Court, are predominantly former corporate lawyers and prosecutors. A Center for American Progress study published in June found that 65 percent of appellate judges spent the majority of their legal careers in private practice, usually at major law firms that specialize in business disputes.

There are only three sitting appellate judges who spent the majority of their careers as lawyers serving as federal or state public defenders, according to the study. Only one judge spent the majority of his career in nonprofit settings. And while many of the sitting judges had taken on civil rights cases as lawyers, none of them had spent the majority of their career at a civil rights organization like the American Civil Liberties Union or the NAACP.

Progressives have had to watch in dismay as Trump and Senate Republicans filled the judiciary with more than 200 new conservative judges, including three Supreme Court justices. The group of judges is mostly white and male, and far less diverse than former President Obama’s appointees.

But in terms of professional diversity on the bench, favoring corporate lawyers and prosecutors over those from other backgrounds has been a bipartisan tradition among recent past presidents.

In 2014, the progressive group Alliance for Justice (AFJ) published a study on the backgrounds of Obama’s judicial nominees, finding that about 85 percent had backgrounds as corporate attorneys, prosecutors or both, with prosecutors outnumbering public defenders by more than three to one. And less than 4 percent of the group had worked as lawyers at public interest organizations.

“When judges come from all corners of the legal profession, it helps to maintain public trust in our judiciary,” Nan Aron, the president and founder of AFJ, told The Hill. “I think it signals that all Americans, not just the rich and powerful, will get a fair shake.”

“There’s also a critical need to repair the damage caused by the Trump judges,” she added.

Aron said that AFJ, along with more than 30 other groups, submitted several hundred recommendations to the Biden team for potential judicial nominations.

Sherrilyn Ifill, the head of the NAACP Legal Defense Fund, one of the most prominent civil rights litigation groups in the country, said in an interview with the writer Anand Giridharadas this week that she was looking to the Biden administration to do more than add superficial diversity when making appointments.

“The federal courts have largely become peopled with lawyers who are former prosecutors, which has entirely skewed the lens through which the law is seen. Public defenders have essentially been shut out,” Ifill said.

“So I’m not interested in a lot of Black prosecutors being appointed to the federal bench,” she added. “It’s got to be infused with transformation, which is why I don’t particularly enjoy the line, ‘I’m going to have a cabinet that looks like America.’ I call that cosmetic diversity. I’m not interested in cosmetic diversity. I’m interested in substantive diversity.”

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Many progressives point to the late Supreme Court justices Thurgood Marshall and Ruth Bader Ginsburg as examples of the ideal type of judge for a Democratic administration to appoint. Marshall and Ginsburg both championed civil rights as lawyers before their nominations, at the NAACP and the ACLU, respectively.

In a speech she delivered in 2011, Ginsburg reflected on how much the political climate around judicial confirmations had changed since she was approved by the Senate in a 96-3 vote in 1993.

“Today, my ACLU connection would probably disqualify me,” Ginsburg said.

Meet Judge Barbara Lagoa of the Court of Appeals for the Eleventh Circuit (11th Cir.) https://t.co/ouqqZhjJZa pic.twitter.com/uumU3GzC1L

— LawsInTexas (@lawsintexasusa) December 26, 2020