During his four years in office, former President Donald Trump reshaped the courts, successfully pushing through a record number of young, deeply conservative judges to fill lifetime positions throughout the country. He left the White House having appointed 234 judges to the federal bench, including 54 appellate judges and a third of the Supreme Court—a legacy that will shape the country for decades to come. Now, Democrats are prioritizing their judicial confirmation effort, confident that they can work faster than they did in the Obama era, while making good on President Joe Biden’s promise to diversify the courts.
Biden has already nominated five public defenders to the circuit courts—as many as Obama nominated in his entire presidency—and three of the five picks are Black women. All five of the nominees had experience as public defenders, while three spent most of their careers doing such work. The demographic diversity of Biden’s judicial picks is reminiscent of Obama’s approach. But the administration’s decision to prioritize public defenders, civil rights lawyers, and union-side labor lawyers represents a greater break with the pro-corporate bias that has long dominated his predecessors’ judicial nominees.
“There is a lot of work to be done to restore balance to the courts, and I think one of the things that gets a lot of attention is the fact that 85 percent of Trump’s judges were white and 75 percent were male, and I think what is really important and sort of revolutionary about Biden’s approach or desire here is the focus on professional diversity,” said Chris Kang, chief counsel of the progressive judicial advocacy group Demand Justice.
But so far, it’s been a mixed bag; progressives are finding that better demographic representation doesn’t necessarily add up to better governance for underrepresented groups. Just last week, the Senate voted to confirm Zahid Quraishi to be a US district judge for the District of New Jersey, making him the first Muslim American federal judge in American history. But some Muslim American civil rights groups were furious, as Slate reported, pointing to his previous work for US Immigrations and Customs Enforcement and as a “detention adviser” who oversaw detention policy in Iraq during the time of Abu Ghraib.
When it comes to filling the US district court positions, some Senate Democrats are refusing to honor Biden’s call to avoid nominating corporate lawyers, which will almost certainly hurt workers. In December 2020, before Biden entered office, his incoming White House counsel sent a letter urging Senate Democrats to recommend public defenders and civil rights attorneys for district court vacancies. Home-state senators have historically played an outsize role in recommending judges for their area.
“With respect to US District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life,” Dana Remus wrote in the letter.
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The explicit request to avoid recommending corporate lawyers didn’t mean much to Colorado’s moderate Democratic Senators Michael Bennet and John Hickenlooper, even as they appeared to pay lip service to Biden’s recommendations. The senators recommended Regina Rodriguez, a partner at corporate law and lobbying giant Wilmerhale, in February. Rodriguez, the daughter of a Mexican American father and a Japanese American mother, was a highly qualified pick and adds to the demographic diversity of the courts. But progressives fought her nomination because Rodriguez had previously worked on behalf of Big Pharma and defended McDonald’s in a 2006 racial discrimination case.
Progressives are similarly concerned with the judicial recommendations coming from New Jersey’s Democratic Senators Cory Booker and Bob Menendez. In late April, Biden nominated Christine O’Hearn, a partner at Brown & Connery, for New Jersey’s district court. The senators praised her as “a highly-regarded advocate for women in the workplace,” despite the fact that most of her experience is in representing management in labor and harassment cases. According to her biography on Brown & Connery’s website, O’Hearn “represents employers in union related matters including matters before the National Labor Relations Board such as petitions for certification, elections, and unfair labor practices as well as collective bargaining negotiations, grievances and arbitrations.” She has spent most of her career working for union-busters and against workplace sexual harassment cases, including on behalf of police departments. Booker’s most recent recommendation, Karen Williams, also spent years arguing cases against workplace sexual harassment cases. Both O’Hearn and Williams are currently awaiting confirmation.
Kang pointed to a report from Demand Justice, authored by Emory University School of Law professor Joanna Shepherd, that found Obama judges with corporate backgrounds were 36 percent less likely to decide in favor of workers in employment cases, while former prosecutors were 50 percent less likely to decide in their favor. “So there is a substantive impact here as well that these cases that come up are going to be decided in a different way,” he said, “and I think that it’s something that all Democratic senators need to be more aware of and more conscious of as they figure out their recommendations.”
If Biden really wants to fulfill his pledge to be the “most pro-union president in history,” he could stop accepting judicial recommendations that undermine his agenda and start nominating more union-side attorneys. As Sara Nelson, president of the Association of Flight Attendants, and one of the most prominent labor leaders in the country, recently said in a tweet: “We need people on the bench who understand how rigged the system is against working people.”
