With newfound control of the executive and legislative branches, Democrats are considering a raft of much-needed legislative reforms, in the labor and employment world and beyond. But with the federal courts largely captured by right-wing and corporate interests, substantive legal reform can only go so far. Federal judges will determine the contours of any new laws, as well as whether they are constitutional to begin with. Judicial selection deeply implicates all important areas of law and policy. Judicial nominations, therefore, are a workers’ rights issue.
Progressive legal groups have recently escalated their focus on the courts, and President Biden, under increased pressure to diversify the bench, appears to have been listening (somewhat). Progressive groups are absolutely correct that the federal bench is far too full of former prosecutors, corporate lawyers, and white men, and that President Biden should seek greater professional and identarian diversity to balance them out. Democrats should, in particular, seek to advance economic justice in the courts by nominating judges who, in their legal careers, have represented working people. Our judiciary lacks the experience garnered by lawyers who represent the vast majority of Americans — worker-side lawyers, consumer lawyers, family lawyers, public defenders, legal aid lawyers — who understand how the legal system is stacked against middle- and low-income people. Nominating more of these attorneys to the bench will create a fairer, more empathetic judiciary, with the requisite understanding of law’s impact on everyday peoples’ lives.
Biden’s initial slate of eleven judicial nominees appears to be a step in the right direction. Far more diverse than President Obama’s nominees, the list includes four former public defenders. But Biden must make efforts to ensure that future nominees include greater professional diversity and actually work to rebalance the courts. Four of his first slate are former prosecutors, and several are corporate law partners. None have experience in legal aid or representing workers or consumers.
Courts in Crisis
The federal courts are currently in crisis. Donald Trump’s one-term presidency, though a failure in many respects, capped the conservative legal movement’s decades-long endeavor to control the federal courts. Conservatives now control a 6-3 supermajority on the Supreme Court, and President Trump appointed over 25% of currently serving active judges on all the federal courts.
As Andrew Strom has argued for OnLabor, Trump’s judges were among the most anti-worker in modern American history. But historically, Democrats fair hardly better. Of federal judges with a background in employment law, President Obama appointed more management-side lawyers than worker- or union-side lawyers to the federal bench. Indeed, Marsha Berzon, one of the only circuit court judges with experience representing workers, recently took senior status. With exceptions, judges selected by both parties commonly have worked in “BigLaw” – highly paid attorneys at a group of large firms that primarily serve corporations and very wealthy Americans – or as federal prosecutors. Progressive groups are currently pushing Democrats to diversify their judicial nominations, in particular eschewing BigLaw lawyers who have made their careers litigating on behalf of large firms.
A recent study proves what most of us would assume: that judges’ professional experiences affect how they judge. The study, which specifically looks at how judges’ backgrounds affect their rulings in workers’ rights cases, made two major findings. First, former corporate lawyers and federal prosecutors are vastly overrepresented on the bench, making up nearly half of President Obama’s Circuit Court nominees. Public defenders and legal aid attorneys rank in the single digits. President Trump did not appoint a single legal aid attorney to the bench. Second, the study shows that regardless of party affiliation, judges who had previously worked in corporate law or as prosecutors were far less likely to decide cases in favor of the employee in employer-employee cases.
This landmark study shows that the formula for selecting our federal judges is broken. In particular, judges who emerge from corporate law firms and U.S. Attorney’s Offices simply are not familiar enough with the nature of legal problems faced by working people in the United States. Federal judges’ most common pre-judicial experience with working Americans was prosecuting them or defending corporations against them, not representing them. The implications of this mismatch for economic justice in the federal courts, and in particular workers’ rights, are enormous.
The Courts and Worker Justice
Federal law governs vast swathes of the employer-employee relationship, and the selection of federal judges means deciding who will have the power to interpret and implement important employment statutes like the Fair Labor Standards Act, Title VII, the National Labor Relations Act, the Occupational Safety and Health Act, and the Employee Retirement Income Security Act, among others, as well as applicable trans-substantive rules like the Federal Arbitration Act and Rule 23. Federal judges will also determine the contours of any new labor reforms, such as the PRO Act. The right judges will make or break federal labor and employment law.
Of course, work history does not guarantee future results. Elena Kagan, who spent time in BigLaw and as a law professor, and Sonia Sotomayor, a former prosecutor, reliably make up the leftmost wing of the Supreme Court. But as legal realists have long argued, judicial outcomes cannot be divorced from judges’ personalities, backgrounds, and biases.
The present judiciary is largely out of touch with the legal concerns facing everyday Americans, and their rulings show it. A federal judge with no experience representing working Americans recently invalidated the CDC’s order temporarily preventing evictions on constitutional grounds. The case is as notable for its reasoning as for its harmful conclusion. The judge found that evictions are not “economic” in nature, as they concern only a landlord’s possessory interest in his property. This take, which centers landlords and minimizes tenants, utterly fails to understand the real economic significance of eviction in renters’ lives.
Last year, Second Circuit judge Richard Sullivan – a former prosecutor and corporate counsel – ignored the mountains of evidence showing that criminal record checks, especially for entry-level employees, discriminate against African Americans, who are disproportionately incarcerated, and denied a group of plaintiffs denied employment opportunities their day in court. Judge Chin, the only judge on the circuit with a background representing workers, vigorously dissented.
The federal bench needs diversification along a number of important axes. Employment law cases comprise a significant portion of the federal court docket, and the federal judiciary surely needs more lawyers with experience in labor and employment law. But for the cause of workers’ rights, far more than relevant substantive experience, we need lawyers who have spent their careers representing everyday Americans, as workers, but also as consumers, tenants, aggrieved spouses, and criminal defendants. Such judges will be able to understand the profound impact that precedent and statutes have on working Americans’ day-to-day lives.
As President Biden works to reshape the federal judiciary, we must demand more than vague progressive ideological commitments from our judges. We need lawyers with demonstrated experience serving working class clients to judge with the empathy needed to understand the unique legal problems faced by working class people in a legal system stacked against them.