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.
The path to nomination for a federal judgeship is costly. The top-tier undergraduate and legal education required of judicial nominees can cost a total of hundreds of thousands of dollars. Many of the prestigious internships available to law students with judges and government agencies are unpaid. The research assistantships with top professors necessary to establish strategic connections to future employers pay very little, if anything. If a student manages to secure the near-perfect grades and faculty relationships crucial to a viable clerkship application, she must bear the cost of traveling across the country for interviews. And if she is lucky enough to be hired, she must shoulder the additional cost of relocating and paying living expenses throughout the clerkship—often while carrying the burden of six-figure student-loan debt. After running this gantlet, many first-generation attorneys turn to major law firms not to amass “wealth and social capital,” as Fallon and Kang allege, but to alleviate paralyzing debt. Often, this debt is generational. And so rather than enjoying their substantial law-firm salaries, many attorneys from lower socioeconomic backgrounds support their parents, siblings, and extended family members.
Kang and Fallon are apparently comfortable telling current and future law students that they should refuse a hard-earned opportunity to break free of generational debt as a sign of progressive purity. We are not. Democratic presidential candidates should not make that request of current and future lawyers either—especially when it will likely exacerbate the lack of diversity among federal jurists.
Perhaps the most disturbing aspect of this consequence is that it is entirely unnecessary. If the objective is to weaken the stranglehold of corporations on the judiciary, the most judicious way to reach that goal is through diligent evaluation of candidates’ legal positions, not categorical disqualification of law-firm partners. Kang and Fallon’s sudden uncertainty regarding a Democratic administration’s ability to vet judicial nominees without applying a litmus test is curious. After all, it seems that Kang was able to manage the nominations of progressive judges without applying such tests.
Rather than painting a host of progressive judicial candidates with a broad brush that has incidental racial and socioeconomic effects, Kang and Fallon would do better to use their significant resources at Demand Justice to develop a real tool for evaluating potential judges. We would encourage them to develop a tool that seriously considers each nominee’s entire life and legal career. Of course, public service, a commitment to workers’ rights, and a proven record of defending against corporate overreach should be major factors. But so should a commitment to diversifying the legal profession, as demonstrated by a proven record of diverse hiring, a score on which Ruth Bader Ginsburg—identified by Kang and Fallon as someone whose non-corporate background would likely prevent her nomination today—fails miserably.
Furthermore, Kang and Fallon’s proposal will yield innumerable false positives. The fact that a lawyer has never been a partner at a major law firm does not in and of itself make that lawyer a better champion of liberal and progressive causes. In the Trump era, many lawyers at major law firms are fighting alongside lawyers at progressive organizations to restrain the worst impulses of this administration. That partnership is often at the behest of progressive organizations, creating a Robin Hood effect whereby major law firms use their corporate-earned resources, human and otherwise, to advance progressive legal positions. Kang and Fallon would champion the judicial candidacy of the progressive organization’s lawyer, but shun the judicial candidacy of that lawyer’s major-law-firm counterpart, even though in many cases the law-firm lawyer may be the one actually leading the effort in terms of time and resources.
More disturbingly, Kang and Fallon would refuse to elevate many of our most liberal and progressive judges already on the bench from the district court to the court of appeals, and from the court of appeals to the Supreme Court. That makes little sense. Why should we forego elevating judges who have a demonstrated judicial record of reining in corporate overreach, defending the rights of minorities and women, and restraining President Trump’s dangerous policies based on an arbitrary rule? Surely, conservatives have not sidelined their champions even in the face of much more egregious errors than working for a major law firm. As progressives, we should not unnecessarily handicap ourselves by arbitrarily refusing to elevate judges who have already shown that they are able and willing to advance liberal causes.
We understand that Kang and Fallon intend to release a list of lawyers they think are liberal and progressive enough to be federal judges. If there isn’t a transparent explanation of the criteria they used and the process by which they created their list, we think it should be given little weight. In any event, we doubt that any Democratic presidential candidate needs such a list. What they do need is a transparent way to evaluate judicial candidates going forward. We agree that conservatives have done a much better job than liberals of developing pipelines for jurists who align with their political, social, and economic values. We want to see liberals do a better job of developing a similar pipeline, but we do not believe that it should be based on arbitrary rules that make for nice catchphrases without doing the real work of evaluating the liberal bona fides of judicial candidates.
We trust that Kang, Fallon, and any future Democratic administration could do the job of selecting liberal and progressive judges without taking an unnecessary, and quite frankly illegitimate, shortcut.
National Chair of the National Black Law Student Association
National Chair of the National Latina/o Law Student Association
Brian Fallon and Christopher Kang reply:
In proposing that Democrats get serious about finally prioritizing professional diversity on the federal bench, we of course do not mean for that to occur at the expense of racial diversity. Contrary to the authors’ speculation, we actually did explore whether these two priorities might be in tension. We are confident that they are not.
One of us in particular has a strong basis to know: As deputy White House counsel for President Obama, Chris personally identified candidates for judicial vacancies, reviewing thousands of lawyers in the process. As has been widely noted, Chris’s time in this position was a historic period in terms of the number of women, people of color, and openly gay and lesbian lawyers nominated to the federal bench. But he also saw many qualified lawyers of color from public-interest and public-defender backgrounds who were not nominated, due to political opposition.
President Trump has nominated the fewest African American and Hispanic judges since Ronald Reagan. The next president absolutely must build upon the Obama administration’s commitment to gender and racial diversity—but she or he must simultaneously set out to conquer the next frontier of underrepresentation by elevating more public defenders and public-interest lawyers.
We agree with the authors when they observe that the current path to federal judgeships is very costly and requires extensive political networking. But we disagree that the proper response to this reality is to simply content ourselves with a judiciary full of well-connected, former corporate lawyers. Rather, we ought to widen the path to federal judgeships in a way that makes it more accessible to lawyers who have been previously excluded. In addition to greater professional diversity, we should seek to have more judges who graduated from non-Ivy law schools and who did not have a federal clerkship.
We certainly understand the financial strains on first-generation lawyers who do not come from privileged backgrounds and those who bear the burden of the racial wealth gap, beginning their careers deep in debt. It is for this very reason that our proposal carves out room for lawyers who may have worked at corporate law firms for years as associates, and only puts a moratorium on ones who have chosen to make their careers representing corporate interests, as indicated by their partner status at such firms. As we stated in our Atlantic article, of course partners at corporate law firms can become fair-minded judges, but that legal background is grossly overrepresented in our federal courts. We admit that our proposal would omit many accomplished lawyers—including, but not limited to, many lawyers of color—from consideration in the next Democratic administration. But these individuals are not, in any sense, entitled to a federal judgeship. No one is. There is a closed universe of judicial vacancies—likely fewer than 200 in a president’s term—and it’s time to make space for those lawyers who, by virtue of their decision to spend their careers representing indigent defendants or workers who have suffered discrimination, have been largely excluded over the past few decades.
To suggest that our proposal would produce fewer people of color for the bench is to suggest that the qualified lawyers of color are all concentrated as partners at corporate law firms. The authors provide no data to suggest that this is the case.
One of the most important ripple effects of President Obama’s commitment to demographic diversity is that it inspired candidates who had never thought of applying for judgeships as possible to do just that. We seek to replicate this impact for public defenders, public-interest lawyers, and labor lawyers, and will actively encourage their candidacies. We are confident that many lawyers of color in these “nontraditional” paths will raise their hands to broaden the pool of potential judges, and that the next Democratic president will reach the highest levels of racial diversity without needing to nominate any corporate partners.
Very soon, we intend to release a short list of recommended lawyers for consideration for the Supreme Court by the next Democratic president. That list will not include anyone who worked as a partner at a corporate law firm, nor will it sacrifice anything from the standpoint of racial or gender diversity.
Lawyers who have trodden the inside track that traditionally culminates in a judicial appointment may think that lawyers who have not pursued the same signifiers of elite status are not as qualified to serve on the bench. But this is hardly the case, and this mentality is one we believe ought to be upended.