Joe Biden buries the lead on his own judicial nominees

Joe Biden’s Very Bad Week continues with this unnecessarily tone-deaf press release about his latest round of federal judicial nominees. The nominees themselves are outstanding and highly qualified, and most have judicial experience at the state or federal level. Indeed, several of the nominees have been federal magistrate judges, which gives them special insight into the nuts and bolts of common procedures like arraignments (on the criminal side) and discovery disputes (on the civil side). 

But that evidently matters less to the President (and his advisors) than the nominees’ race and gender. The primary focus of the press release is on the number of Latina and Black nominees in this slate. Nothing is said up front about any of their accomplishments (except in very vague and broad language) or (in several cases) their relative youth, assuring the potential for a multi-decade career on the bench. It’s an insult to the nominees, at what should be a great moment in their legal careers, to reduce them to demographic avatars for the purpose of promoting a political agenda.

Let’s give the nominees some of the credit they deserve. Buried deep in the press release, we learn about this slate’s extraordinary diversity of legal experience: on the bench, as both prosecutors and public defenders, in the legal academy, and in private practice in areas ranging from family law to intellectual property. Some even have experience with social work and public education. That range of experience, and the different perspectives is must inculcate, will help the entire federal judicary — both in the courtroom and behind the scenes.

Congratulations to all the nominees.

Great moments in online media

From my web browser’s news feed this afternoon:

Screenshot 2021-10-14 15.07.40 cropped 

The Sotomayor story is somewhat intriguing in its own right, since the most obvious change in the Supreme Court’s post-pandemic non-interruption policy has been the emergence of a vocal and inquisitive Justice Thomas at oral arguments. One can only wonder what he might have asked over the past thirty years if he had not been swimming in the Court’s predominant ethos of  argumentum interruptus.

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

Educational and experiential diversity on the federal bench

A guest post by Lawrence Friedman

As recently noted in the Interdependent Third Branch, the novel coronavirus has caused the U.S. Supreme Court to close its doors to the public until further notice. Several of the justices fall into the category of persons most vulnerable to the disease: Stephen Breyer is 81 years old; Ruth Bader Ginsburg will be 87 next week; and Clarence Thomas is 71. Three other justices are in their sixties: Samuel Alito is 69, while both the chief justice, John Roberts, and Sonia Sotomayor are 65.

The list is a reminder of how gray the Court has become—and that the potential for multiple appointments is going to be a significant campaign issue in November. One aspect of that issue is the lack of diversity on the Court, which reflects the lack of diversity in the federal judiciary. A February report by the American Constitution Society put it bluntly: “judges who sit on the federal bench are overwhelmingly white and male.” In addition to gender and race, moreover, most judges at the highest levels of the federal system share another characteristic: they all attended a very small number of elite law schools. As the New York Times recently noted, most of President Donald Trump’s judicial appointees “have elite credentials, with nearly half having trained as lawyers at Harvard, Stanford, the University of Chicago or Yale.”

Consider the members of the Supreme Court. Four justices hold law degrees from Yale Law School, four from Harvard Law School and one – Ginsburg – started at Harvard and finished at Columbia Law School. Eight served as judges on federal appeals courts, while one – Kagan – served previously as solicitor general and, before that, dean of Harvard Law School. Just one –Sotomayor – served as a federal district court judge. Three served at one time as full-time law professors—Breyer and Kagan at Harvard, Ginsburg at Columbia.

Or, consider the members of the junior varsity Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit. Of the eleven judges not on senior status, five graduated from Harvard, two each from the law schools at the Universities of Virginia and Chicago, and one each from Stanford University and the University of North Carolina Chapel Hill. Only two served as district court judges prior to being elevated to the Appeals Court.

Twenty judges total and, among them, they represent just seven law schools, with almost half just one, Harvard. Only three, moreover, know what it is like to oversee civil and criminal litigation on the ground, to hear motions to suppress and make evidentiary rulings at trial.

This lack of intellectual and experiential diversity is not new. Observing, a decade ago, that Sotomayor would add diversity to the supreme court in respect to ethnicity, gender and economic origins, Renée Landers and I nonetheless concluded that selecting nominees from within a narrow range of qualifications defined by pedigree effectively deprives the public of judges “who may see the world and the legal issues it presents in ways that are different and more helpful than those [judges] whose views on the law were shaped by essentially the same educational and professional experiences.”

The American Constitution Society is right: “Courts should look like the people they represent,” which I take to mean the citizens the federal judiciary serves. But such diversity should not be limited to gender and race or ethnicity. Rather, on the nation’s highest federal courts, it should encompass the varied educational and practical experiences available in a profession that produces countless lawyers who have not served as either federal appellate judges or law school professors.

As in other areas of the law, presidents and senators could look to the states for other approaches. Just as state courts have been leaders in exploring the breadth and depth of constitutional commitments to individual rights and liberties through their own constitutions, so too have appointing authorities in many states valued diverse educational and practical experiences in selecting judges for their high courts. Of the justices of the Massachusetts Supreme Judicial Court, for example, three attended Harvard and one Chicago, while two attended Suffolk University School of Law and one Boston University Law School. Five sat earlier in their careers on the state’s trial court.

Elite law schools and federal appellate judges have no monopoly on teaching legal reasoning or applying it, respectively. It stands to reason that lawyers trained to consider the practical implications of doctrinal changes and how such changes may affect the parties before them are likely to have a different appreciation for the consequences of appellate decisionmaking. This is not to suggest that these judges make better decisions—just that, to the extent each of us is shaped by our experiences, the high courts on which these judges sit are likely to benefit from the perspectives they bring to bear on the resolution of disputes over statutory and constitutional meaning. It is important, as the American Constitution Society and others maintain, that judges look like the people they serve. It should also be important that they reflect the ways in which most American lawyers appreciate both the law and the role judges play in defining it.

This post is the first of a larger exchange on Supreme Court qualifications and the nominating process. For Jordy Singer’s response, click here. For Lawrence Friedman’s reply, click here.

Still more embarrassment for the “Chicago Way” of choosing judges

Over the past three years, his blog has tracked the litany of shocking stories coming out of Chicago area judicial elections — shocking, that is, for anywhere except Cook County. There, it seems, the sulfurous mix of identity politics, voter ignorance, and unscrupulous candidates is a way of life.

This week, the Chicago Sun-Times and Injustice Watch added another depressing data point: “sham” judicial candidates who are placed on the ballot simply to confuse voters and throw the election. Here’s how it is alleged to work: when it appears that a candidate preferred by the city’s Democratic establishment is at risk of losing a judicial race, one or more “sham” candidates will enter the race and be added to the ballot. The “sham” candidates are not real, in the sense that they expend no money on the campaign, conduct no campaign events (and often barely have a campaign website), and don’t seem sincerely interested in a judicial post. But these “sham” candidates do have something in common: names that appeal to voters’ identity politics (which is Chicago, translates mostly to feminine -sounding first names and Irish surnames). The expectation is that voters, who have done no research on the judicial candidates on the ballot, will simply vote for those who sound like Irish-American women. (And there is proof that this expectation plays out in real life.) The “sham” candidates confuse enough voters to draw votes away from the non-establishment candidate, allowing the establishment candidate to prevail.

It’s doesn’t always work. The article, for example, relates how the presence of alleged “sham” candidate Bonnie McGrath in 2016 was not enough to prevent the victory of non-establishment candidate Carol Gallagher. And the alleged “sham” candidates have protested that despite their utter lack of campaign activity, their desire to be judges is sincere. But let’s be honest: the entire process is still shameful — or at least it should be, if the party bosses behind this ruse were capable of shame.

 

Brooklyn judicial elections take an even more dismaying turn

This blog has been closely following the Democratic primary elections for county judge in Brooklyn, New York, where voters were forced to choose between candidates approved by the Democratic party machine and a group of “insurgents” running on an independent slate. The election took place earlier this month, and the results are … flabbergasting.

Continue reading “Brooklyn judicial elections take an even more dismaying turn”