Late last week, thirty-two civil rights, workers’ rights and similar organizations signed a letter to senators urging them to recommend judicial nominees to President Obama who “would add needed professional diversity to the judiciary.” “[I]f the judiciary is devoid of judges with prior experience representing civil plaintiffs or otherwise advocating for the public interest,” the letter argues, “it will appear as though the deck is stacked in advance, and public confidence in the courts—the belief that all litigants truly can have their day in court—will erode.” The letter follows a recent report by the Alliance for Justice, a liberal group focused on judicial confirmations, showing that civil rights attorneys, public defenders and lawyers with similar backgrounds rarely receive judicial nominations from the Obama White House.
The AFJ report paints a grim picture for public interest attorneys with judicial aspirations. 71 percent of Obama’s trial court nominees and 73 percent of his court of appeals nominees “practiced with primarily corporate or business clients.” Nominees who once worked as prosecutors outnumber public defenders by more than three to one. Just 3.6 percent of the President’s nominees worked for a public interest organization at some point in their career.
It’s tempting to blame these outcomes on a too timid White House. Or on the fact that the senators who play an outsized role in recommending potential judges to the administration lack sufficient creativity. Or on the fact that the filibuster made confirming anyone objectionable to Republicans impossible until very recently. And, certainly, these factors play a role in the lopsided mix of nominees President Obama has sent to the Senate for their consideration. But the truth is that public interest lawyers who wish to become judges face a much deeper structural problem than Senate procedure or the attitudes of particular elected officials — and it’s not at all clear that this structural problem has a solution.
A Republican Lawyer’s Dream Job
Imagine that you are a pro-business Republican who aspires to advance the political agenda of large, for-profit corporations through litigation. What kind of job would you choose to maximize your ability to do so? A pretty good answer to this question is that you would become the head of appellate litigation at a major corporate law firm — which is exactly what future Chief Justice John Roberts did before he joined the federal bench. During his time as a partner in the law firm of Hogan and Hartson, Roberts argued that HMOs should have more leeway to refuse to pay for treatments in Illinois, that the Americans with Disabilities Act should be read narrowly, and he filed a brief on behalf on the National Mining Association in an important casing involving mountaintop removal mining.
And yet, when President Bush nominated Roberts to his current seat on the Supreme Court, Roberts’ many years at Hogan was largely viewed as a politically neutral credential and most senators treated attacks on Roberts based on who he represented as an attorney in private practice as strictly out of bounds. Indeed, when Sen. Lindsay Graham (R-SC) said to Roberts during his confirmation hearing that “[a]nother line of inquiry that’s been disturbing to me is that we talk about the clients you represent,” Roberts himself jumped on this bandwagon. “[I]t’s a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients,” the future chief justice explained. ” He then cited — as people making this argument frequently do — the example of future President John Adams, “who represented the British soldiers charged in the Boston Massacre.”
Since joining the Supreme Court, Roberts has largely been a friend of big business. Yet, the truth is that Graham and Roberts had a point when they suggested that Roberts’ time in private practice offers a very poor window into his politics. Both of President Obama’s Supreme Court nominees, Justices Sonia Sotomayor and Elena Kagan, worked at firms that primarily represent corporate clients — Sotomayor even made partner at her firm before she became a judge. Two of President Clinton’s former Solicitors General — Walter Dellinger and Seth Waxman — are partners at large law firms that primarily represent business clients. Neal Katyal, who served as acting Solicitor General under President Obama, is a partner at Hogan. The civil rights groups’ letter is correct that a judge’s experience prior to joining the bench can have a subtle and significant impact on how they decide cases, but the most important factor in politically charged cases is often whether that judge is a Democrat or a Republican.
A Window Into A Lawyer’s Soul
Yet, while a lawyer’s decision to work at a large law firm is, at best, an imperfect window into their political views, their decision to work for a public interest organization can be a window into their soul. The question of whether it was fair to hold a lawyers’ clients against him came up shortly before the Senate rejected Debo Adegbile’s nomination to lead the Justice Department’s Civil Rights Division. Adegbile fell victim to an ugly campaign to render him ineligible for a Senate-confirmed position because he once signed a brief arguing on behalf of a convicted cop killer who received an unconstitutional death sentence (two Republican judges agreed that the sentence was unconstitutional). Had a similar standard been applied to Chief Justice Roberts, Roberts also would have been ineligible for confirmation because he once represented a serial killer.
There are important differences between Roberts and Adegbile, not the least of which is the fact that many of the senators who argued against Adegbile were likely being disingenuous when they laid out the reason for their opposition. Adegbile is not just some guy who once signed a brief in a death penalty case, he is one of the most accomplished civil rights litigators in the country — and arguably the nation’s leading voting rights litigator. As an attorney with the NAACP Legal Defense and Educational Fund, Adegbile twice defended the Voting Rights Act in the Supreme Court — the same Voting Rights Act that Roberts recently gutted. With Republican state lawmakers currently waging a widespread voter suppression campaign, their Republican counterparts in the Senate couldn’t have been very jazzed about the idea of placing the power of the United State Department of Justice in the hands of a leading voting rights litigator.
Indeed, even if Adegbile were not a uniquely prominent voting rights attorney, the mere fact that he worked for the Legal Defense Fund distinguishes him from Chief Justice Roberts. A lawyer with Adegbile’s talent and broad experience could quit public interest work tomorrow, if he chose to, and begin a far more lucrative career as a partner in a large law firm. The fact that he has chosen not to do so speaks volumes about his commitment to civil rights.
In a saner political climate, this would have been the most important reason to confirm him to lead the Civil Rights Division — America deserves to have its top civil rights attorney be absolutely committed to the field of civil rights. But we do not live in that world. We live in a world where nominees to important jobs are often nothing but pawns in a broader game to score political points or to bolster or to undermine the president. As Dawn Johnsen, a former Justice Department nominee who fell to a filibuster during President Obama’s first term, recently told the Washington Post,
“In meetings with Republican senators, I was told by several of them, ‘This is not about you in any way.'” They indicated they were going to talk about her national security positions and torture, she said, “but it was more about the president’s position and partisan disputes about those issues.
The sad truth is that lawyers can take lucrative jobs in large corporate law firms and reveal little about their politics in the process. But a lawyer who gives up most of their earning power in order to serve the public interest reveals themselves as a passionate advocate for issues that many senators oppose. In practice this means that a Republican attorney who wants to spend their career seeking to deregulate big businesses can take a job that is perfectly suited to that end and suffer no consequences if they later want to become a judge, but a Democratic attorney with a similar commitment to civil rights or workers rights or injured consumers or civil liberties for criminal defendants cannot take a job focused exclusively on these issues without endangering their ability to be confirmed by the Senate.
The fact that only a tiny fraction of Obama’s judicial nominees have a public interest background, in other words, is a symptom of a much larger disease. Democratic presidents can play it safe and nominate big firm lawyers, prosecutors and other lawyers with credentials that are viewed as politically neutral — or they can go to war to try to confirm lawyers with public interest backgrounds. Meanwhile, Republican presidents have far more latitude to name judges who align with the GOP’s political views. In the long run, that doesn’t just lead to fewer judges with a demonstrated commitment to civil rights or similar issues, it also drives many talented attorneys away from jobs that primarily serve the public interest — as the most ambitious lawyers will be more reluctant to take a job that will limit their career prospects in the future.