In what could be one of the more important developments of the this election season, a prominent progressive advocacy group will demand that Democrats running for president reject nominating more corporate lawyers to the federal bench.
The co-founders of the Demand Justice group, in a Wednesday Atlantic piece, argue that “for years, presidents of both parties, along with the senators who advise on their judicial selections, have favored a certain kind of résumé,” and “perhaps no qualification is more prevalent than prior work at a major private-sector firm, representing the interests of large corporations.”
“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,” Christopher Kang and Brian Fallon write. “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.”
They also argue that the Chief Justice John Roberts’s Supreme 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,” they continue. “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.”
They define corporate lawyer as someone “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.” They concede this standard, had it been in effect in 2009, would have excluded former corporate-law partner Sonia Sotomayor. And they point out that there are better options for Democrats than former Acting Solicitor General Neal Katyal, who now works at the same D.C.-centric insider firm that once employed John Roberts:
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.
Fallon and Kang want Democrats to elevate people to the federal bench 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.”
Some of their “worthy picks” include people like the Eighth Circuit’s Jane Kelly, Mississippi Judge Carlton Reeves, Stanford law professor Pam Karlan, and Michelle Alexander, the author of The New Jim Crow. The group will soon “propose a list of potential judicial selections whom the next Democratic president should consider.”
Arguing for more “professional diversity,” Kang and Fallon note that 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.” They argue that “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.”
“Today the federal bench is wildly unrepresentative of the legal profession as a whole,” they continue, pointing out that Demand Justice “has analyzed the professional backgrounds of all 175 circuit-court judges, who serve at the level just below the Supreme Court” and “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,” they point out. “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.”
Fallon and Kang note that corporate lawyers are not incapable but “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,” they argue. “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.”