Biglaw

Demand Justice Argues No Biglaw Attorneys Should Be Nominated To The Courts

Reshaping the courts means promoting different kinds of experiences to the bench.

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One of the advantages Republicans and the Federalist Society have when it comes to judicial appointments is that they have managed to turn their agenda-driven support of white supremacy into a guiding legal ideology. Originalism does a lot of work: it’s a form of indoctrination, it’s a purity test, it’s a euphemism, it’s a trap, and it’s a judicial outcome masquerading as a theory of mere interpretation. If Republicans were honest about the agenda behind originalism, people would reject it. If the Federalist Society admitted it was choosing judges solely on their willingness to retard the rights and equality of nonwhite people and women, they wouldn’t be treated as legitimate. But originalism functions like a long garment under which conservatives can smuggle in all sorts of nightmares.

The left has no counterpart. The left’s preference for viewing each case as an individual controversy, instead of some kind of ongoing ideological battle of Constitutional supremacy, defies the promotion of straight ideologues to the bench. Even when Democrats are in favor of pushing a specific ideology, the Democrats operate within a much wider ideological spectrum: a liberal ideologically committed to regulatory authority of the administrative state will fight a liberal ideologically committed to the advancement of civil rights, when those regulations are racist. There is no organizational fealty a progressive must pledge in order to be considered for a judicial opening. Democrats want to nominate “good” judges, whatever the hell that means. They don’t have to have a specific background, they don’t have to be indoctrinated by a specific group, they don’t have to have served their time in preferred positions, nobody cares about their race, color, or creed — they don’t even have to be particularly young.

Which is why Democrats fail. Conservatives strike the same racist and misogynist note, over and over again, while liberals are enamored by the diversity of the keyboard. Conservatives have a conniption when one of “theirs,” like John Roberts, doesn’t rule their way all the time, while liberals make excuses for Stephen Breyer. Republicans who do this work already know not only the next 10 people they want on the Supreme Court, but the next 10 people they want on every circuit court. Democrats… I mean if you asked the people running for the Democratic nomination right now who the next Democratic nominee should be to the Supreme Court, half of them would say “Merrick Garland,” and be surprised when progressive court watchers asked those candidates for their money back.

There is no liberal answer to the Federalist Society, there is no liberal answer to the Judicial Crisis Network; wealthy conservatives pour money into groups meant to win the courts for conservatives, while wealthy liberals pour money into their own presidential campaigns. There is no answer.

There have been lots of attempts to correct this losing asymmetry by groups of the left. Democratic politicians might be frustratingly unwilling to battle Republicans for the control of the courts, but groups like the American Constitution Society and Alliance for Justice have been trying to school politicians and the voting public about what a “good” judge should look like from the left. Today, Demand Justice — a group started by former Clinton campaign national press secretary Brian Fallon — is out with a new proposal that offers an alternative way to pick liberal judicial nominees. Their guiding principle? No Biglaw partners.

From Fallon and Demand Justice’s co-founder, Chris Kang, in their op-ed in The Atlantic:

Today the federal bench is wildly unrepresentative of the legal profession as a whole. Our organization—Demand Justice—has analyzed the professional backgrounds of all 175 circuit-court judges, who serve at the level just below the Supreme Court. It 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.

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.

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Focusing on a lawyer’s training is one way to do it, when imposing a universal ideology is not available. It is unquestionable that the Roberts’ Court has been the most “pro-business” Court of all time, with disastrous effects for worker’s rights and women’s rights. If you can’t say “we’re only going to support judges who support the rights of the underrepresented,” saying “we’re only going to support judges who haven’t made their careers by promoting the rights of the rich and powerful” feels like the next best thing.

I like this idea, way more than I would have a few years ago. Longtime readers of this blog know that somewhere deep inside of me lurks an unabashedly elitist prick. Prep school –> Ivy law school –> Biglaw –> circuit court appointment is a pathway that seemed not just standard, but more or less preferred to me, just a couple of years ago.

But… the Brett Kavanaugh fiasco did something to me. They hurt me. They changed me. They opened my eyes to a reality I was all too willing to overlook while ogling the gold-plated résumés of my peers. The reality is that legal elites will protect their own, no matter what, no matter the cost in blood and treasure to those who look to the courts as the first, last, and only chance at justice.

Long before Brett Kavanaugh was accused of attempted rape, his defense of sexual harasser Alex Kozinski was known. His argument that he didn’t know anything about Kozinski was a lie, and the legal elites were in the best possible position to call him out on that lie. In addition, he was a known political hack — his time working with Ken Starr alone proved that. And he perjured himself in front of Congress.

But elites from Ivy law professors to Biglaw attorneys defended him. Liberal elites. Oh sure, progressive elites “worried” about this absolute antipathy towards women and their reproductive rights, but they consistently told us that Kavanaugh was a “good guy.” Why? Because they went to an event with him and he didn’t shotgun a beer while playing a game of grab-ass? You didn’t need to believe that he tried to rape somebody (which I believe he did) to know that he was entirely unfit for the federal bench, much less the Supreme Court. The inability of powerful elites to see that is an indictment of the whole lot of them.

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The entire culture of Biglaw and Ivy League education is how a guy like Brett Kavanaugh is allowed to happen. Telling all of these people that they have to sit on the sidelines for a term or two while we nominate judges who have not been doused by that culture seems like a fine start towards remaking the federal bench.

Now, there are some obvious problems with this approach. NYU Law professor Melissa Murray (who people should really listen to about all things), puts the obvious problem plainly:

Professor Murray goes on to point out that right now, students of color are fielding Biglaw offers, high-paying jobs that they’ve worked their butts off for that are also the only way that they can pay off their huge debts from law school. Many of these people will be accused of “selling out” by their own community, when the reality is that law school is so expensive, the government does so little to help offset the costs, and people of color so rarely have “Mommy and Daddy” pay off their education, that Biglaw is not just the best offer, but the only reasonable one.

Trust me, I’ve been there. It would be hypocritical of me to tell students of color to do anything other than “take the money,” just because I figured out five seconds ago that the culture of elitism kind of sucks.

But, I think there are aspects of this Demand Justice proposal that answer some of Professor Murray’s entirely legitimate criticisms. For starters, Demand Justice is defining “corporate lawyers” as Biglaw partners, not associates. I do think that there is a legitimate distinction that can be drawn between young people who hop in to make some cash and pay some debts, versus established lawyers who use Biglaw as a piggy-bank every time their party is out of favor in Washington. It is the people who are always trying to keep themselves in the good graces of corporate law, in case they ever want to cash in their chips, that are the problem Demand Justice is trying to solve for.

As a second point, encouraging ambitious people who have the financial stability to not go into Biglaw, to not go into Biglaw, isn’t the worst thing in the world. You should be able to spend your entire career as a public defender, and still be considered for a judicial appointment. You shouldn’t feel like if you don’t get your Biglaw stamp that your career is permanently hobbled. Remember, we have a whole generation of potentially brilliant lawyers who were not able to get into Biglaw, because they came out of school during the last recession. And, not for nothing, but we’re on the cusp of having another one. Making sure we value these alternative professional experiences is an important goal.

I reached out to Professor Murrary for some non-Twitter thoughts about these issues. She said:

I do not disagree with the premise of this proposal: that we need a broader understanding of the experiences that make for a federal judge. But this seems less like a temporal re-calibration, and more of a categorical exclusion of a particular group of people from federal judicial service. While I would be delighted to see more public defenders and union lawyers on the judiciary, I would worry about a proposal that excludes from the judicial pipeline the appointment of women and people of color who happen to be partners at law firms.

She added: “People of color are not Biglaw partners because we all love the Chamber of Commerce.”

These critiques track with my own experience in Biglaw. I didn’t love my clients, I loved being able to afford to help my mother out with her rent. But, as I read it, nothing that Demand Justice is saying suggests that Biglaw produces inherently bad judges, they’re saying that Biglaw is inherently overrepresented on the judiciary. That’s something I do think should be fixed. The next Democratic president is going to have a wealth of potential judges to choose from (IF. WE. TAKE BACK. THE SENATE!!!!). Telling Democrats to look at non-corporate types, as opposed to picking people who have been “vetted” by Cravath, strikes me as a good thing. It’s one way to fight back against the Republican effort to reshape the courts as a place for only white men with arch-conservative views.

Of course, if it were me, I’d have a slightly different unfair categorical ban for my judicial appointments: No career prosecutors. But that’s a battle for another day.

No More Corporate Lawyers on the Federal Bench [The Atlantic]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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