In response to President Donald Trump’s historic transformation of the federal judiciary, several Democratic candidates for president have promised to prioritize the swift appointment of a new wave of federal judges if they enter the White House.
But if Democrats hope to reverse Trump’s success in seeding the federal judiciary with extreme ideologues, they need to do more than nominate and confirm judges swiftly. They need to start nominating a whole different kind of judge.
We have seen the judicial confirmation process up close. We’ve both worked as top aides in the Senate, and one of us served as the top White House lawyer for judicial nominations for a majority of Barack Obama’s presidency. We believe that a Democratic president who follows Trump must show a new level of boldness, adopting a simple but revolutionary principle: We don’t need any more corporate lawyers on the federal bench during the next Democratic administration.
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.
It is not difficult to understand how corporate-law partners came to dominate the pool of judicial-nomination candidates. Many of the most accomplished lawyers in the country are drawn to the high-profile work—and large paychecks—available at large firms. Their elite schooling, clerkship connections, and financial resources bring them into the orbit of the federal officeholders who play a role in naming judges. Republicans often elevate these lawyers for their proven ability to promote corporate interests. For Democrats, there are certain political upsides to these types of nominees as well: Their work as corporate lawyers can help project a moderate image and deflect criticism from the pro-business Republicans who vote on their confirmations.
But this pattern has had consequences that should gravely concern progressives. First, there is an urgent need to push back against the ever-increasing body of pro-corporate rulings coming out of the federal courts. Progressives have generally been slow to recognize what they are up against. It’s fairly well accepted that social conservatives have sought to swing the courts to the right following Supreme Court decisions desegregating America’s schools and recognizing a woman’s right to have an abortion. Less recognized, however, is that business-friendly Republicans have simultaneously focused on using the courts to make the country friendlier to their interests, a push that intensified in tandem with the efforts of social conservatives. In 1971, Lewis Powell—then a corporate lawyer, who would go on to be named to the Supreme Court by President Richard Nixon—wrote a memo to the Chamber of Commerce urging it to make the courts a key prong in its strategy to promote its pro-business agenda. The chamber largely followed Powell’s advice in the ensuing decades.
The progressive Constitutional Accountability Center has calculated the Chamber of Commerce’s “win rate” before the Supreme Court, looking at the cases in which the business group has filed friend-of-the-Court briefs. Overall, since John Roberts became chief justice in 2005, the Court has sided with the chamber 70 percent of the time, substantially more often than during the tenures of Chief Justices Warren Burger and William Rehnquist.
The Roberts Court has also embraced controversial legal theories, such as corporate personhood, that have helped big companies consolidate power. It has interpreted the First Amendment as requiring that, in the name of free speech, corporations be allowed to spend unlimited sums to influence elections and that, in the name of freedom of religion, companies be allowed to deny contraception coverage to female employees. The Court’s rulings have gutted the collective-bargaining power of unions, granted corporations immunity from liability for human-rights violations, and expanded the use of forced arbitration, effectively repealing decades of landmark protections by allowing corporate wrongdoers to unilaterally opt out of the federal judiciary’s protections.
The combination of rising corporate power and eroding legal protections for workers and consumers has resulted in a system that empowers corporations to take advantage of individuals with near-impunity. This trend has fed the massive transfer of wealth and political power away from everyday Americans and toward large corporations and their shareholders.
It would be a woefully insufficient response to this situation for Democrats to put forward nominees who, in many cases, helped develop this very body of jurisprudence during their time at major law firms.
Take, for instance, Neal Katyal, whose unquestionable intellect, past tenure as acting solicitor general under Obama, and outspoken criticism of Trump might elevate him, on paper, as a potential candidate for the Supreme Court. But in his current role as a co-head of the appellate practice at Hogan Lovells––the same position at the same firm that Roberts held before he became a judge—Katyal filed briefs taking anti-union positions in two Supreme Court cases that laid the groundwork for the Court’s decision to undermine public-sector unions in Janus v. AFSCME. In the Epic Systems Corp. v. Lewis case, again before the Supreme Court, Katyal argued against workers’ ability to bring class-action lawsuits against their employers. When the Court ruled in Katyal’s clients’ favor, Katyal’s firm hailed it as a “major win for employers.” The 5–4 decision fell along ideological lines, with newly minted Justice Neil Gorsuch providing the decisive vote just months after Katyal publicly endorsed Gorsuch’s confirmation.
Instead of someone like Katyal, 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. For example, Deepak Gupta has represented the employees’ side in multiple arbitration cases before the Court, and Jenny Yang is a former plaintiffs’ lawyer and former chair of the U.S. Equal Employment Opportunity Commission. Sharon Block is a former National Labor Relations Board member who now runs an employment-law program at Harvard Law School, and Tim Wu is a Columbia Law School professor whose scholarship has questioned corporate power. Any of them could bring to the bench experiences and perspectives that are sorely lacking in our federal courts.
Second, Democrats’ penchant for naming corporate lawyers to the bench has further entrenched an insular, back-scratching network of legal elites who work together to promote corporate interests.
In Washington, lawyers of both political parties cycle between stints in the federal government and more lucrative work at corporate-law firms that argue routinely before the Supreme Court. A 2014 Reuters study quantified the impact of this revolving door. It found that of the 17,000 lawyers who petitioned the Court during an eight-year period, a very small subset—totaling just 66 attorneys in all—were six times likelier than all the other lawyers to get their cases heard by the Supreme Court. Of these 66 well-connected lawyers, 51 worked at firms that mostly represented corporate interests. These lawyers tended to have worked as clerks to the justices or were known to the justices socially. The result of this clubbiness, Reuters found, was “a self-replicating group of insiders” and “a decided advantage for corporate America.”
In this rarified world of the Supreme Court bar, Ivy League degrees and prestigious clerkships, much more than party affiliation or legal philosophy, are the coin of the realm. Neil Eggleston, the former White House counsel to Obama during Senate Republicans’ blockade of Merrick Garland, recently endorsed Daniel Bress, a Trump nominee for the Ninth Circuit Court of Appeals, even though his nomination was adamantly opposed by both of his home-state Democratic senators. Why would Eggleston boost a Federalist Society member with conservative views over Democratic objections? Eggleston noted in a short letter to senators that he and Bress were both partners at the Washington office of the corporate-law firm Kirkland & Ellis. Although they “do not always agree with each other politically,” he said, Bress “is a good colleague and a good friend.” That, of course, will be small consolation to any litigants who find themselves on the wrong side of Bress’s decisions as a judge.
It should be a goal of Democrats to burst this bubble that insulates the Supreme Court and the corporate lawyers who practice before it, and to level the playing field for lawyers with other backgrounds.
Third, Democrats’ tendency to nominate corporate lawyers amounts to a political surrender to the right’s vision of what background makes for an acceptable judge. Conceding to terms set by political conservatives sharply limits the diversity of views on the bench and hampers progressive ideals.
For progressives, the iconic figure on today’s Supreme Court is Ruth Bader Ginsburg. Her path to the Court ran through academia and the American Civil Liberties Union, where she worked as a trailblazing litigator on behalf of gender equality. By her admission, that type of background would probably prevent her nomination today. It would also probably preclude the likes of Thurgood Marshall, who founded the NAACP Legal Defense and Educational Fund.
It is time to widen the field of potential candidates for judicial nominations so that it can again include more lawyers like Ginsburg and Marshall. During Obama’s tenure, he emphasized the promotion of racial and gender diversity on the bench––an essential goal toward which he made historic strides. The next Democratic president should build on these gains by prioritizing not just demographic diversity but also professional diversity.
Today the federal bench is wildly unrepresentative of the legal profession as a whole. Our organization—Demand Justice—has analyzed the professional backgrounds of all 175 circuit-court judges, who serve at the level just below the Supreme Court. It found that nearly 60 percent were once corporate-law partners.
This dynamic has created perverse professional incentives for young, progressive lawyers who possess even the slightest political ambitions. A career at a corporate firm already confers advantages in the form of wealth and social capital, but it has also become a politically safe way station for anyone nurturing hopes of a judicial appointment.
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.
In the first three years of Trump’s presidency, Democratic politicians have been quick to grab the bullhorn at airport protests to cheer on lawsuits against Trump’s travel ban, or to urge on legal challenges to Trump’s ban on transgender individuals serving in the military. Many of these lawsuits have been filed by lawyers at groups such as the ACLU. When Democrats regain power, they should keep the faith with the public-interest lawyers who brought those lawsuits and consider them for potential vacancies on the federal bench. If Democrats truly want the next president’s arrival to mark an inflection point when it comes to the composition of the judiciary, we should elevate those whose full-time jobs were on the front lines defending our democracy during this dark period, not those whose paychecks were drawn from corporate clients.
Admittedly, faithfully adhering to the type of no-corporate-lawyer rule we are proposing will not be easy. For starters, there is the question of how to define who counts as a corporate lawyer. We would define it as a lawyer who achieves partner status at a corporate-law firm—such as the large firms known collectively as Big Law––or who serves as in-house counsel at a large corporation. This would mean lawyers who briefly worked as associates at firms during an early phase in their career would not be excluded.
This would, without question, leave many worthy judicial candidates out of the running. Current appellate-court judges such as Paul Watford and Pam Harris—two names whispered as potential Supreme Court picks by a future Democratic president—were partners at major firms before joining the bench. What’s more, if our standard were in effect in 2009, Sonia Sotomayor—a former corporate-law partner—could not have been picked by Obama.
But our point is not that corporate lawyers are incapable of becoming fair-minded judges. A judge’s legal background is not inherently predictive of how she will rule. Sotomayor herself is proof of that; so, too, is Jon Tigar, a former corporate lawyer who now sits on the federal bench in San Francisco and whom Trump derided as “an Obama judge” following Tigar’s ruling to temporarily block Trump’s asylum ban.
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.
In the coming weeks, Demand Justice will propose a list of potential judicial selections whom the next Democratic president should consider. We are confident that the exercise will prove there is no shortage of qualified picks who have chosen paths in public-interest work, labor law, academia, or other fields that deserve to be represented on the federal bench. For every potential nominee like current D.C. Circuit Court of Appeals Judge Patricia Millett—who, despite her brilliance as a jurist, would not make our list, due to her past work at Akin Gump Strauss Hauer & Feld—there is one like Nina Pillard, Millett’s colleague on the D.C. Circuit Court, whose career spans the NAACP Legal Defense and Educational Fund and Georgetown Law, and who would make for a tremendous justice.
Other worthy picks include public servants such as Jane Kelly, a former public defender on the Eighth Circuit; Carlton Reeves, a former federal civil lawyer who co-founded an integrated law firm that often took on cases for individuals and classes of individuals; Pam Karlan, a renowned academic and public interest lawyer who has championed voting rights and LGBTQ equality; and Michelle Alexander, a civil-rights lawyer whose work has exposed the systemic racism within our criminal-justice system.
It is true that excluding judicial candidates who’ve worked as corporate lawyers might trigger greater Republican opposition to future Democratic nominees. But as Republicans demonstrated in the last two years of Obama’s presidency, they are unlikely to greet any Democratic president’s picks favorably, regardless of their résumé. And appointing the kind of nominees they would approve of will do little to counteract the tilt of the courts toward corporate interests.
The Trump presidency has caused Democrats to rediscover the importance of the judiciary. That is a very good thing. But Democrats should not delude ourselves into thinking that depriving Trump of four more years to continue his makeover of the judiciary is a sufficient response to the problem. Democrats cannot simply return to business as usual when it’s our turn to nominate judges again. Instead, we must stock the federal judiciary with judges who have a more diverse array of experiences, who can help their colleagues more fully understand the competing perspectives on the law that come before them.
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