Biden’s Pool

It comes as no surprise that President Biden is trying to broaden the pool from which federal judges are drawn. That’s a good thing.

President Joe Biden and Senate Democrats are vetting civil rights lawyers and public defenders to nominate as judges, embarking on a mission to shape the courts after Republicans overhauled them in the last four years, according to senior party officials and activists.

Democrats have a wafer-thin Senate majority that gives them control over appointments. They believe they have two years to make their mark and fill a growing number of vacancies before the midterm elections, where the party in power historically loses seats.

This isn’t to say that every judge appointed by Trump was bad, though some were and others were grossly unready for the bench. It’s unclear whether the characterization of the two practice areas suddenly of interest to the Dems, civil rights lawyers and public defenders, mean what they appear to mean. Are they saying private criminal defense lawyers need not apply? What about civil liberties lawyers, the kind who would have worked for the ACLU when it was still involved in civil liberties?  Are they out too?

The history of the federal bench is largely a by-product of who hangs out with senators, who traditionally proposed to the president nominees for the districts in their state. Biglaw lawyers were on their radar. Government lawyers had an in. Criminal defense lawyers? Nah. They neither knew nor cared who we were. We didn’t contribute enough to their campaigns to get noticed, and we were tainted by defending nasty cases. Senators preferred to proffer clean candidates who could sail through confirmation hearings without a whiff of impropriety. That was not us.

To the extent Biden is changing the pool of nominees, making it wider and deeper, so that the nominees for the federal bench will be expanded beyond the limits of folks who hang around with senators, that’s great. The qualifications for the bench, intelligence, competence and temperament, are enhanced by having more lawyers from which to choose.

But is that what Biden is doing, expanding the pool of potential judges, or is there a stereotype at work that by nominating civil rights lawyers and public defenders, he’ll put biased judges on the bench to counter the perceived bias of Trump’s appointees? These two practice areas have been touted by activists for specifically that reason, not because they would make excellent judges, but because they would make activist judges who would use their authority to achieve progressive ends.

This has been the open and notorious goal of Demand Justice, which has put together a list of names of people whom they believe will be reliably biased and unworthy of the job.

If Democrats hope to reverse Trump’s success in seeding the federal judiciary with extreme ideologues, they need to start nominating a whole different kind of judge. For years, presidents of both parties, along with the senators who advise on their judicial selections, have favored a certain kind of résumé, with corporate lawyers and prosecutors dominating the ranks. Unfortunately, public interest lawyers, plaintiffs’ lawyers, public defenders, and progressive academics have been few and far between.

The argument is “Trump did it, so we should too.” By amassing a puddle, a group a mile wide and an inch deep, they demonstrate their shameless effort to push for a judiciary they trust to give them the outcomes they “demand,” law be damned. Their “Supreme Court Shortlist” has some names on it that are great, but others so shockingly dangerous and unqualified as to be laughable if it wasn’t so disgraceful.

Even so, the radical Demand Justice crazies realize that prior practice area does not guarantee future performance.

While a judge’s background is not inherently predictive of how she will rule, we need judges from a more diverse array of experiences, who will be better equipped to help their colleagues more fully understand the competing perspectives on the law that come before them.

No argument there. For many years, I’ve argued that we need more trench lawyers on the courts, lawyers with the full breadth of experience rather than the rarefied world of Biglaw or government. Eric Turkewitz has argued for the “tissue box test,”

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

This isn’t about putting biased judges on the bench, but judges with a breadth of experience that has long been missing. They will still be expected to rule according to law, to decide each case on its individual facts and without favor.

If President Biden is trying to do this, to expand the pool of nominees, to bring in lawyers with broad experience, to provide greater depth to the federal judicuary, then that’s a wonderful thing and it’s about time that short list was limited to the folks senators met at cocktail parties.

But then, let’s stop saying it’s just “civil rights lawyers” and “public defenders,” because that emits the smell of prejudice. They should certainly be part of that big pool of potential judicial nominees, but just part. If Biden is serious about broadening the experience of his nominees rather than trying to load the court to put judges on the bench to achieve desired outcomes, he should be clear about it.

That said, bear in mind that just because someone practiced a certain niche of law does not mean they’ll be a good judge, or even a reliable ally once they get life tenure. The bench has a weird way of changing people, or letting their “true nature” come out. You never know when you nominate someone whether they’ll turn out the way you expected. Ike learned that lesson. Biden should remember it.