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.
Read: “Corporations are people” is built on an incredible 19th-century lie
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.”