Do you remember the debate between Trump and Hillary Clinton, where Trump said he would appoint Supreme Court justices who opposed abortion? In reply, Clinton said she would nominate justices who supported abortion. Much as it served to create a dividing line on the issue of abortion, few people noticed that both candidates did the same thing, a terribly bad thing: they promised Supreme Court justices whose votes were predetermined.
If the promise suited your views, that didn’t seem to be a problem. If not, then it clearly was a terrible thing. After all, wasn’t a core purpose in electing a president getting a Supreme Court that would do his bidding, be a faithful cog in the wheel of politics? Both sides wanted it, promised it, but Trump won.
That meant any person he appointed would be tainted, even if they were already on circuit courts, confirmed without issue, doing their jobs in a way that no one questioned. Suddenly, they went from good, competent judges to political hacks and, well, a lot worse.
Whether Justices Gorsuch or Kavanaugh deserved the treatment they received can be debated. What they will do on the Supreme Court, however, remains to be seen. Turning them into cartoon character judges in the public mind doesn’t change who they are, just our shallow speculation about who they are.
But this taint of the judiciary, as seen through the Supreme Court, has trickled down to the judges in the trenches who rarely get noticed, whose names are unknown to anyone other than lawyers, who do the vast majority of the work of the judiciary. Trump nominated corporate hacks, and a group run by former Clinton campaign national press secretary Brian Fallon, which humbly calls itself Demand Justice (as opposed to its opposition, Demand Injustice?), has come up with an alternative.
For years, presidents of both parties, along with the senators who advise on their judicial selections, have favored a certain kind of résumé. A typical nominee might have an Ivy League degree and clerkships with one or more respected federal judges. But perhaps no qualification is more prevalent than prior work at a major private-sector firm, representing the interests of large corporations.
This isn’t entirely correct. There are two other, quasi-related, pools of lawyers who are likely to be nominated: federal prosecutors and academics. There are a host of reasons why this is so, and they’re fairly sound reasons. They are, for the most part, smart and accomplished lawyers, usually the top of their class and with few obvious skeletons in their walk-in closets.
They have access to senators and party leaders, get quoted in newspapers and have easy-to-say official titles that quickly imbue them with a sense of credibility and accomplishment. Most importantly, they’re unlikely to have pissed off too many people or been compelled to take a highly unpopular stand. They’re clean nominees, likely to sail through the Senate confirmation hearings with nary a nay. Until now?
Democrats ought to nominate judges whose day jobs involve working for ordinary Americans. That means, for example, choosing lawyers who represent workers, consumers, or civil-rights plaintiffs, or who have studied the law from that vantage point. Many outstanding lawyers have dedicated their career to advancing the interests of workers.
They go on to give examples of prominent lawyers whose work reflects their preferred ideology rather than the shallow assumption that anyone who works in the “wrong” jobs or represents the “wrong” clients does so because they are ideologically aligned with their clients’ causes. Even Neal Katyal, Obama’s Solicitor General, is too tainted for consideration under their litmus test. And they concede as much, that their “demand” would leave excellent judges out of the running for no other reason than they worked for the wrong employer.
Our point, rather, is that the federal bench is already filled with enough corporate lawyers, and that the law is being skewed in favor of corporations, giving them astonishing power. And for all the examples of progressive judges who spent time in Big Law, there are many more brilliant legal minds whose backgrounds too often, perversely, prevented their consideration for the bench. There are plenty enough highly qualified individuals with other backgrounds—civil-rights litigators, public defenders, and legal-aid lawyers—that the next president can afford to make identifying new types of candidates a priority.
They raise an important point, but for a very wrong reason. For years, I’ve argued that the federal bench, and particularly the Supreme Court, needs trench lawyers. That means lawyers with real world experience practicing law, trying cases. “Civil-rights litigators, public defenders, and legal-aid lawyers” have that experience, but they didn’t make the list because of that. Note that there aren’t any personal injury lawyers. Note that it’s PDs, not criminal defense lawyers.* Note that it’s “progressive judges.”
Is this intended to suggest that cases are to be decided in favor of the employee against a corporation, the union against the employer, the defense against the prosecution?
The next Democratic administration should make upending these professional incentives a priority. A career representing indigent defendants or working as a civil-rights lawyer at a public-interest organization should be an asset in progressive circles, not a liability. Republicans aggressively promote judicial nominees who have worked at right-wing advocacy organizations or who have advanced conservative causes, while Democrats unilaterally eschew the political fights that come with such picks. The next Democratic president must break this mold.
The argument that Trump and the Republicans are deeply wrong in their nomination of judges based on their conservative bias is juxtaposed with the solution that Democrats should commit the same offense, but in favor of their team.**
Every lawyer and client hopes to walk into court, make his best argument on the law and facts, and get a fair shake from the judge. Instead of moving closer to having judges appointed because of their skillset, their impartiality and their intellect, we’re just flipping one perceived group of ideologues for another, which kind of makes the whole concept of a neutral magistrate even more of a joke than it is now. And this is progress?
*The critical distinction is that private criminal defense lawyers are dirty lawyers, who choose to defend rapists and murderers for filthy lucre, whereas public defenders are pure, defending them for their virtuous love of humanity and the Constitution, and only because they’ve been directed to do so when not driving Ubers.
**Ironically, a voice of moderation on this point comes from my old pal, Elie Mystal, but for a curious reason: Now that marginalized identities are finally getting hired by Biglaw, shouldn’t they get to make the big bucks and still be in the running for the big bench?