No More Corporate Lawyers on the Federal Bench
If Democrats hope to reverse Donald Trump’s success in seeding the federal judiciary with extreme ideologues, Brian Fallon and Christopher Kang argued in August, they need to stop nominating corporate-law partners and start nominating lawyers who have represented workers, consumers, or civil-rights plaintiffs, or who have studied the law from that vantage point:
“Our point is not that corporate lawyers are incapable of becoming fair-minded judges,” they wrote. “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.”
Having overseen the selection and vetting of more than 200 of President Barack Obama’s judicial nominees, former White House lawyer Christopher Kang, joined by veteran political operative Brian Fallon, now call for a revolution: no more corporate lawyers on the federal bench during the next Democratic administration. This simplistic proposal is unlikely to reverse the tide of pro-corporation, anti-consumer Supreme Court opinions. After all, Kang and Fallon acknowledge that jurists who would be disqualified under their proposal, such as Justice Sonia Sotomayor and Judge Patricia Millett, have opposed this trend. Instead, the proposal will likely exclude many first-generation black and Latino attorneys from the federal bench. That Fallon and Kang advanced their proposal without even considering this consequence reeks of the very elitism and racial exclusion that has kept the judiciary mostly white and mostly male for more than two centuries. While the days of de jure exclusion of minorities and women from the federal bench are thankfully behind us, the climb for minorities and women to the federal bench is still more arduous than for the white men who have traditionally held those seats of power. One of the many reasons for that reality is the cost of the climb.