If Joe Biden beats Donald Trump in November, he will immediately confront a judiciary that is hostile to most Democratic policies. Trump, after all, has spent nearly four years stacking the courts with extremely conservative judges—200 in all, most of them straight, white men. To identify more progressive nominees, Biden will likely defer to Democratic senators, allowing them to propose candidates from their own states. But this traditional method of judicial selection tends to favor the white- and male-dominated legal establishment, a new report details. If Biden is truly committed to creating a more diverse and equitable judiciary, he needs to revolutionize the judicial nominations process by borrowing President Jimmy Carter’s best idea.
There’s a notorious asymmetry between Republicans and Democrats when it comes to picking judges. Republicans mostly draw nominees from the Federalist Society, a network of conservative lawyers whose views usually align with the Republican Party platform. The Federalist Society provides a bottomless well of attorneys who are eager to impose their carefully cultivated ideology from the bench. Democrats have no real equivalent; liberal legal groups like the American Constitution Society have nowhere near as much political clout. Thus, Democratic presidents have relied on senators, particularly from their own party, to generate potential nominees.
A new report by Matt Bruenig and Emma Steiner of the People’s Policy Project, a think tank on the left, explains why this approach fails to create a stable of genuinely diverse and progressive judges. Thirty-seven Democratic senators select committees of attorneys to help them recommend nominees. Nineteen of these senators tell the public who sits on their committees. Eighteen do not; their committees operate in secrecy. PPP examined the membership of these 19 public committees and found a common thread: Almost all of them have a disproportionate number of corporate lawyers and prosecutors. This problem plagues not just centrist Democrats like Sen. Michael Bennet, but also self-identified progressives like Sen. Mazie Hirono. Two-thirds of members on Sen. Dianne Feinstein’s committee are corporate lawyers or prosecutors—a worrying figure given that Feinstein is poised to become Senate Judiciary chair if Democrats take the Senate.
In all, corporate lawyers make up about 35 percent of the members on Senate Democrats’ committees—while just 14 percent of law school graduates who get jobs practice corporate law. Meanwhile, current and former prosecutors make up 24 percent of the members on these committees, and a vastly smaller percentage of the legal workforce. By contrast, just 11 out of the 144 committee members worked as public defenders. Feinstein’s committee contains 10 prosecutors and zero public defenders. And, tellingly, nearly half of the public committee members had donated to the senators who selected them.
There is broad consensus among progressives that more women, people of color, and members of the LGBTQ community should serve in the judiciary. And for good reason: These judges bring vital perspectives and life experiences to the bench, and actually bolsters the courts’ legitimacy. For evidence that nontraditional judges enrich American jurisprudence, consider the recent spectacle of a Black judge teaching his white colleague why racial profiling is, in fact, bad.
But there’s another kind of diversity that matters, too: diversity of professional background. And it is sorely lacking on our courts today. As of 2019, nearly 60 percent of federal circuit court judges were former corporate law partners. This distortion creates perverse incentives for law graduates with judicial aspirations, indicating that they should become corporate lawyers rather than defense attorneys, academics, or public interest attorneys. Moreover, corporate lawyers spend their careers helping powerful people make more money, gain more power, and fend off challenges from the less fortunate. They help concentrate money at the very top, perpetuating economic inequality and abetting the corrosive effects of runaway political spending. Similarly, prosecutors crank the wheels of our racist and draconian criminal justice system, crushing the lives and liberty of countless defendants, most of them indigent. How might those perspectives affect a court’s ruling on mandatory arbitration or wrongful convictions?
Democrats are accustomed to sorting judges into “conservative” or “liberal” teams. Those broad categories obscure the differences in experience and perspective gained through decades working in corporate law versus legal aid, or as a prosecutor versus a public defender. If elected, Biden should correct the imbalance and nominate public defenders, trial attorneys, civil rights advocates, and legal aid lawyers to the bench.
To do so, he’ll need to upend the judicial selection process by taking a page from Jimmy Carter’s book. Carter famously issued an executive order that created judicial nominating commissions for each circuit court, requiring racial and gender diversity on each panel. It was an extraordinary success, bringing a huge number of nontraditional judges into the judiciary for the first time in U.S. history.
In its report, PPP urges Biden to copy the Carter model, with two changes. First, he should extend these commissions to district courts, not just circuit courts. (Carter asked senators to create diverse commissions for district court nominees but not all complied.) Second, Biden should “commit to only appointing lawyers to the commission that have spent the vast majority of their career advocating for underdog groups in society.” And he should exclude lawyers who worked “for a significant period” as prosecutors, corporate lawyers, or union busters.
A coalition of progressive organizations led by Demand Justice, a court reform group, has already exhorted the next Democratic president not to elevate corporate lawyers to the judiciary. But, if elected, Biden will need to do more than screen out these attorneys. He will have to identify a truly diverse set of candidates drawn from different corners of the legal profession, a new generation of judges who better reflect the nation they serve.
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