Progressives peeved over lack of professional diversity and Big Law's presence in Biden's first slate of judicial picks

Biden

Summary List Placement

Regina Rodriguez stood out among President Joe Biden’s first slate of federal judicial nominees.

As the daughter of a Mexican-American father and Japanese-American mother who was sent to an internment camp during World War II, she brought a compelling personal story alongside her background as a former federal prosecutor and partner at a major law firm. 

But on a list of 11 judicial picks from late March that was otherwise praised for its racial diversity, Rodriguez’s nomination for a lifetime appointment in Colorado still didn’t sit well with critical corners of the Democratic Party. 

Two dozen advocacy groups including Americans for Financial Reform, Consumer Action, and US PIRG joined a chorus of criticism that the Biden administration is falling well short of its stated aim of breaking from the mold of longtime prosecutors and corporate lawyers to bring more professional diversity to the federal bench.

In a letter to the White House last week, they voiced concern that the roster of nominees did not “include anyone with genuine experience representing consumers and workers, but instead continued the historic pattern of drawing nominees from big corporate law firms.”

“Old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors for federal judgeships,” added Demand Justice, a progressive advocacy group focused on the judiciary. The group did not name Rodriguez or her law firm — Wilmer, Cutler, Pickering, Hale and Dorr — but had previously faulted Sen. Michael Bennet, a Democrat of Colorado, for recommending a lawyer with a record defending McDonald’s and other corporate clients.

The uproar from progressive groups underscored the intensifying pressure in the Democratic Party to eschew corporate law firms for judicial nominations and instead pull from the ranks of civil rights and legal aid attorneys and advocates for consumers and workers. It’s tough love for Biden coming from the left, even following four tumultuous years where President Donald Trump dramatically shifted the federal courts to the conservative and religious right.

Progressives say they’re disgruntled to see the nation’s biggest law firms — Goodwin Procter, Morrison & Foerster, and Kirkland & Ellis, to name a few — line the resumes of Biden’s judicial nominees. That means they’re flagging the likes of an otherwise racially diverse group that includes Tiffany Cunningham, a Perkins Coie partner who just got picked to be the first Black woman on a federal appeals court that specializes in patent cases, and Candace Jackson-Akiwumi, a Zuckerman Spaeder partner nominated to be the second Black woman to serve on the Chicago-based US Court of Appeals for the Seventh Circuit. (Judge Ann Claire Williams, the first Black woman appointed to the 7th Circuit, retired in January 2018.)

In the early months of Biden’s presidency, pressure from progressives has also extended to executive branch roles, raising hurdles for corporate law firm partners angling for top roles at the Justice Department and elsewhere in the administration.

One lawyer close to the Biden administration remarked to Insider about how, “in a very short amount of time,” a law-firm partnership had devolved from a neutral credential to a liability for Democrats seeking a political appointment.

“That’s a dramatic shift,” the lawyer said.

‘Deficit in expertise and experience’ 

Biden’s administration has plenty of room to improve professional diversity in the country’s courts: Only one percent of all the current federal appellate judges have spent the majority of their careers as public defenders or legal aid attorneys, according to the Federal Justice Center, the research and education agency of the US judicial branch. 

The Center for American Progress has also reported that more than 70 percent of all current appellate judges have spent the majority of their careers in private practice or as federal prosecutors as of July 2020.

Jiny Kim, the vice president for policy and programs at Asian American Justice Center, told Insider that there is a “deficit in expertise and experience” among federal appellate judges right now.

“Who makes key decisions about the rights of Americans should reflect Americans overall. The judiciary branch right now, as it is, is not reflective of that. In terms of diversity, whether its racial, ethnic, gender, sexual orientation, or professional diversity, it is just simply not reflective of the diversity of America,” she said. 

Dana Remus, now the White House counsel, reinforced the incoming Biden administration’s commitment on professional diversity in a December letter to senators.

Remus, who previously served as an Obama White House lawyer, said the administration is “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.”

US District Court for the District of Columbia Judge Ketanji Brown Jackson

A ‘purity test’?

Biden’s aim to promote professional diversity has elevated some potential nominees. It’s also torpedoed others.

The president prioritized both professional and racial diversity when he picked Judge Ketanji Brown Jackson, a Black woman and former public defender, for one of the two vacant seats on the powerful US Court of Appeals for the DC Circuit.

For the other vacancy on the DC Circuit, the White House is considering Deepak Gupta, a prominent appellate lawyer whose public-interest law firm specializes in representing consumers, workers and civil rights and environmental groups.

Gupta describes his firm on its website as a “counterweight to the corporate dominance of the Supreme Court and appellate bar.” Progressive groups including the National Association of Consumer Advocates have recently sent letters to the White House urging Biden to nominate Gupta, 43, who rose to prominence in recent years arguing before the Supreme Court and leading high-profile litigation against Trump and his administration.

The National Association of Consumer Advocates has also sent a letter supporting Karla Gilbride, a lawyer at Public Justice who like Gupta has vocally opposed mandatory arbitration agreements that prevent consumers from taking corporations to court.

Google is now a resume no-no

At firms that represent corporations in court, top lawyers with strong Democratic ties have seen their client rosters complicate their hopes of landing a job in the Biden administration.

In the search for a nominee to lead the Justice Department’s antitrust division, the Biden administration has struggled to land on a pick because several top contenders have represented Google or other Big Tech companies. The past representations have raised ethical concerns at a time when the Justice Department is taking on Google in court, alleging that the search giant has unlawfully maintained a monopoly with anticompetitive business practices. 

Among the lawyers knocked out of consideration was Terrell McSweeny, a former Biden aide whom Obama appointed to the Federal Trade Commission. McSweeny, now a partner at Covington & Burling, withdrew after White House lawyers said her past representation of companies that complained about Google would force her to recuse herself from the Justice Department’s case, Politico reported.

Some partners inside law firms with Democratic ties privately gripe that the Biden administration has been unfairly applying a “purity test” over past clients and positions. A lawyer with knowledge of the Biden administration’s selection process noted that Jonathan Sallet, a former Obama administration lawyer, has apparently remained in contention for the antitrust division role despite working for the state of Colorado and joining with a coalition of state attorneys general who have filed a parallel lawsuit against Google.

Late last year, the prominent appellate lawyer David Frederick was seen as a top contender for the nomination to serve as US solicitor general, the chief Supreme Court advocate at the Justice Department. At the law firm Kellogg, Hansen, Todd, Figel & Frederick, Frederick is known for representing consumers before the Supreme Court. He also represented retired National Football League players in a case accusing the league of concealing the risks of concussions in the sport. 

But he fell out of consideration, in part, because his client roster included Shell Oil Company, according to a person close to the selection process. HuffPost reported in January that more than 50 environmental and faith-based groups wrote a letter urging the then-incoming Biden administration to remove Frederick from consideration.

Since then, the Biden administration has struggled to find a nominee for solicitor general. The administration twice approached California Supreme Court Justice Leondra Kruger, but she declined to accept the nomination, believing it could only complicate her hopes of some day being named to the US Supreme Court, according to two people familiar with her decision.

Biden

‘The benefit of the doubt’

Progressive groups appeared to respond most forcefully to Rodriguez’s background as a corporate lawyer at Wilmer Hale. But the law firm ties didn’t end with her. 

  • Biden nominated Cunningham for a seat on the US Court of Appeals for the Federal Circuit. She’s a Perkins Coie partner who “serves as trial and appellate counsel for large multinational companies, as well as small enterprises, and individuals in complex patent and trade secret disputes,” the White House said.
  • Jackson-Akiwumi, the 7th Circuit nominee, worked as a federal public defender for 10 years before joining the law firm Zuckerman Spaeder last year as a partner. Zahid N. Quraishi, a magistrate judge who previously led the white-collar defense practice at Riker Danzig, was nominated to be a federal trial judge in New Jersey.
  • Margaret Strickland, a name partner and criminal defense lawyer at McGraw & Strickland, was nominated to be a federal trial judge in New Mexico. Strickland, like other nominees in Biden’s first slate, also had experience as a public defender.

In spite of their criticism of the first batch of judicial nominees, progressive advocates said they were pleased to see Biden move quickly to start nominating judges after seeing Trump stock the federal bench almost exclusively with conservative white men.

“We were very heartened to see that President Biden’s first slate of nominees really did reflect a commitment to professional diversity,” Maggie Jo Buchanan, director of Legal Progress at the Center for American Progress, told Insider. 

“We’re really seeing an unprecedented focus on the importance of (professionally diverse) perspectives, and that is extremely welcome news to anyone who believes that judicial decision making should be fair and reflective of a wide variety of expertise.”

For progressive groups that had previously focused on regulations, Trump’s aggressive push to stock the federal courts prompted a newfound engagement on judicial nominations. Some advocates said that several of Biden’s initial judge picks had been vetted or even nominated late in the Obama administration, making them safe options for a first group that would draw especially close scrutiny. 

“The fact of the matter is there are cases and there is litigation and legal work that is inextricably tied to financial justice. It’s affected by who’s on the bench,” said Linda Jun, senior policy counsel for the economic justice group Americans for Financial Reform.

Jun’s group on Friday publicly released a letter it organized urging the Biden White House to “prioritize both professional and demographic diversity for all future judicial nominations.”

Joined by 23 consumer, civil rights, community, housing, and other public interest organizations, their letter to Remus said lawyers “who have spent their careers developing an in-depth understanding of the legal needs of everyday people are systematically underrepresented on the bench.”

Ira Rheingold, the executive director of the National Association of Consumer Advocates, said his group has begun to push the Biden administration on professional diversity out of concern for the “judicial hostility” it has seen the Supreme Court and lower courts show for consumer claims.

But Rheingold said he remains confident in the Biden administration’s interest in professional diversity in spite of his disappointment with the first slate.

“At this point, I’m willing to give them the benefit of the doubt,” he said. But, he added, the National Association of Consumer Advocates will be “watching carefully to see their promises are kept” and that the Biden administration “will help create a judiciary that’s diverse in ways it’s never been diverse before.”

 

 

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