It seemed possible that last week’s Senate Judiciary Committee hearing for Christine O’Hearn, Joe Biden’s nominee to become a federal judge for the District of New Jersey, might prove more compelling than your average judicial nominee hearing. O’Hearn is a management-side labor and employment lawyer who has spent decades defending employers against workers’ claims of discrimination and harassment, and helping employers fight employees’ efforts to form unions. Would the Democratic Senators on the Committee point out that the nomination was in tension with President Biden’s stated commitment to nominate lawyers with backgrounds underrepresented in the federal judiciary, like public defenders and civil rights lawyers, not to mention his self-ascribed image as the most pro-union president in decades? Would they ask O’Hearn’s home-state senators, their colleagues Sens. Robert Menendez and Cory Booker, why they perplexingly described O’Hearn as a champion for women and workers’ rights when the nomination was announced?
Turns out no, they would not. Apart from an unrelated feisty exchange in which Sen. Mazie Hirono called out Sen. Ted Cruz for “mansplaining,” Wednesday’s hearing was unremarkable, and these tensions went unexplored. It seems likely that O’Hearn’s nomination will sail through the Senate, to the extent anything sails through that becalming body, without any further examination of her record. Given her background, it seems likely her confirmation will contribute to the slow-motion disaster that is the federal courts’ approach to workers’ rights.
O’Hearn is a typical judicial nominee for presidents of both parties over the last few decades—a politically-connected lawyer from a big law firm—but she is a surprising one for the Biden White House. Even before the president took office, Biden’s incoming White House counsel, Dana Remus, sent a letter to Democratic Senators asking them to recommend potential judicial nominees who were diverse in terms of race, ethnicity, gender, sexual orientation and gender identity, religion, veteran status, and disability. And, for district court seats especially, Remus said the incoming President was “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.” O’Hearn’s track record does not fit into these latter categories.
Biden’s requests for demographic and experiential diversity did not come out of nowhere. Federal judges are disproportionately white and male, with backgrounds as criminal prosecutors or corporate attorneys, jobs in which they represent powerful entities rather than ordinary people. The situation got worse under President Donald Trump; his judicial appointees were 75 percent male and 84 percent white; the majority had significant experience representing corporations; and none had backgrounds as public defenders or legal aid lawyers. Ideologically, they were even more homogeneous, because Trump largely outsourced the work of selecting judges to the right-wing Federalist Society.
By contrast, President Biden’s judicial nominees have been far more diverse in terms of identity and experience representing the less-powerful. His first three nominees to Circuit Courts were all Black women, and four of his first 11 nominees had experience as public defenders. On Thursday, his nominee Candace Jackson-Akiwumi, who spent over a decade as a public defender in Illinois, was confirmed to the 7th Circuit, becoming the only non-white judge currently serving on that court.
But Christine O’Hearn has spent most of her career defending employers against employees. She represented the Camden Police against former employees’ charges of age and race discrimination and retaliation, an Atlantic City prosecutor who was accused of demoting high-ranking women while giving raises to men and speaking in a derogatory way about women, and Cooper Health System when a radiology technologist claimed his termination was based on age discrimination. She also has helped employers thwart workers’ attempts to form unions, work her firm describes as “union avoidance” (you may know it by the more common name, union-busting). In 2008 she published an article called “Assumption Refuted: No Duty to Provide Pregnant Employees with Light Duty,” in which she argued that “an employee with a normal, uncomplicated pregnancy is not entitled to light duty or any other accommodation.”
When O’Hearn’s nomination was announced, Menendez and Booker put out a glowing statement incongruously describing her as someone who had “spent much of her career advocating for women in the workplace and defending the rights of workers against employee discrimination, harassment and a hostile work environment.” It’s not clear whether this Opposite Day description of O’Hearn’s career was based on an actual misunderstanding of the type of law she practices; was an attempt to treat a small number of cases in which she did represent individuals as typical of her experience; or whether they just considered the words to be meaningless puffery. Both New Jersey senators spoke about O’Hearn in Wednesday’s hearing. Menendez praised her “astute judgment and even temperament,” and Booker applauded her for being “truly Jersey through and through,” but neither repeated the claim that she is a champion of workers.
The most obvious explanation for the White House’s nomination of O’Hearn, and several other prosecutors, management-side attorneys, and corporate lawyers, is that the president is deferring to—one might say rubber-stamping—Democratic home-state senators’ recommendations for district court judges. In turn, many senators outsource the work of vetting and choosing judicial nominees to committees that are often filled with law firm lawyers and prosecutors who have donated significant amounts of money to the senators. Unsurprisingly, these committees often act as an echo chamber, recommending other attorneys similar to themselves. When the president defers to senators and senators defer to these committees, these insular, and sometimes secret, groups of lawyers wield a disturbing amount of power over who will become federal judges for life.
To date, not one of Biden’s judicial nominees has been a union-side labor lawyer. This, combined with the fact that Remus’s letter specifically asked senators for the names of public defenders, civil rights lawyers, and legal aid attorneys, but not union lawyers, suggests another possible explanation for O’Hearn’s nomination. Perhaps the White House doesn’t think labor law is as important as civil rights, voting rights, or criminal law. Or perhaps it is easier to choose lawyers who are public defenders or legal aid lawyers because their work is more likely to involve seeking justice for individual people one at a time, rather than representing groups of workers who are exercising their collective power to challenge the economic status quo.
For the White House to be uninterested in appointing judges with union-side labor law experience would seem surprising given the president’s strong statements about the importance of workers’ rights to collectively bargain. It would also be a serious mistake. While labor law may seem like a niche area, workers united in unions play a key role in reducing income inequality, counteracting the outsized power of huge corporations and the ultra-wealthy, and strengthening democracy. A strong labor movement also strengthens other justice movements, like the fights for racial justice, immigrant justice, disability justice, and rights based on gender, sexual orientation, and gender identity.
Opponents of the labor movement are busy using the federal courts to attack it, often to great success. For instance, just this week the Supreme Court struck down a California statute, which Cesar Chavez’s farmworkers’ movement won after a long fight in the 1970s, that gave union organizers the ability to enter farmland at limited times to speak with farmworkers. The court’s 2018 Janus v. AFSCME decision dealt a serious blow to the public sector labor movement, which now contains the majority of unionized workers, by preventing public sector unions from charging “fair share fees” to all the workers they represent. Following that decision there are well over a hundred follow-on cases in federal courts across the country seeking to further harm public sector unions’ ability to function. And every day courts decide labor law cases of huge importance to workers, like whether to order the immediate reinstatement of a worker fired during a union organizing drive. Having labor lawyers as judges in these cases can make a huge difference.
While Christine O’Hearn is just one nominee, the message her nomination and probable confirmation sends is concerning. A bust of Cesar Chavez may sit in the Oval Office, but if Democratic senators and the president work together to appoint federal judges who practice “union avoidance” law, and none who represent unions, while the courts are busy chipping away at the labor movement, the symbolic value of that decorating choice will be of little comfort.