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Progressive Judges Wish List Heavy on ACLU, Light on Big Law

March 2, 2021, 9:46 AM

The decade Richard Boulware spent as a public defender before becoming a federal trial judge in Nevada meant he looked at his court’s local rules differently upon joining the bench.

Requiring court documents be sent to email addresses or dismissing a case when a litigant’s address wasn’t promptly updated could disadvantage people without online access or a stable address, Boulware said.

“I have the privilege to have experienced how frequently our system can feel unfair to individuals who don’t have the same access to resources as other individuals,” Boulware said.

If progressive activists had their way, President Joe Biden would appoint many more judges who represented criminal defendants as well as workers, consumers, and civil rights plaintiffs. Wish lists assembled by two progressive groups, Demand Justice and the People’s Parity Project, provide a window into what exactly their vision for the federal bench looks like.

Boulware, who is Black, is among the 76 lawyers and judges on the lists that are composed overwhelmingly of women and minorities, a Bloomberg Law analysis found. What’s equally important, insist progressive activists, is diverse work experiences, and the lists draw heavily on former public defenders, as well as alumni of the NAACP Legal Defense and Education Fund, the American Civil Liberties Union, and other public interest legal groups.

As the layers of diversity grow, however, so does the potential for new tensions. That’s already evident in Colorado, where Democratic senators are facing pushback from progressives for putting forward a Latina Big Law attorney for an open district court seat.

The decision by Senate Democrats to retain home-state input for district court nominees, at least for now, means it will be harder to get unconventional nominees confirmed in states with Republican senators. Nominees with nontraditional resumes may also be less likely to be deemed qualified by the American Bar Association.

What Progressives Want

The People’s Parity Project, composed of law students and new lawyers, wants to change the narrative among Democrats about what’s considered qualifying experience for judicial nominees, said Molly Coleman, the group’s executive director and co-founder.

“For us, it was really showing that if you want people who will make outstanding judges, you actually don’t need to look to Wall Street’s lawyers,” Coleman said of her group’s list, which was composed with the federal appeals courts in mind.

Judges who have predominantly had experience in private practice and as federal prosecutors make up more than 70% of the appellate bench, while just 1% of circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting, according to a August 2020 Center for American Progress study.

In comparison, 20% of those suggested by the People’s Parity Project and Demand Justice have spent at least part of their careers working as public defenders. The wish lists include 15 attorneys who have worked at the NAACP’s Legal Defense and Education Fund and 11 who have worked for the ACLU on issues including reproductive rights, gay rights, immigration, and election law.

The ranks of attorneys on the lists who have represented consumers, workers, or unions include Nicole Berner, general counsel for the Service Employees International Union, and Deepak Gupta, who founded a public interest law firm after working at Public Citizen and the Consumer Financial Protection Bureau.

Christopher Kang, chief counsel and co-founder of Demand Justice who worked on judicial nominations in the Obama White House, said diversifying the federal bench is “not only having people that look like America but who have represented individual Americans.” His group’s list is aimed at potential Supreme Court nominees, but Kang said it broadly represents the type of people it would like to see on district and appellate courts.

Judges’ backgrounds can make a difference in outcomes. Judges with experience as federal prosecutors or corporate lawyers are less likely to rule in favor of workers in employment disputes, according to a recent study by Emory University law professor Joanna Shepherd and supported by Demand Justice.

Checking Every Box

Adding new criteria for ideal progressive judicial appointments sets up the potential for conflicting priorities. Progressives already pushed back on Colorado’s Democratic senators for their recommendation of WilmerHale partner Regina Rodriguez for a federal judgeship, because of her corporate law background.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said while he understands there is a lot of ground to make up in terms of professional experience because both parties focused on nominees with Big Law experience in the past, racial and ethnic diversity remain important.

“There will always be corporate lawyers and federal prosecutors on the federal bench and the ranks of those former corporate lawyers and prosecutors should also reflect diversity,” Saenz said.

There are still federal courts that haven’t had a Latino or Latina judge, including the D.C. Circuit, Saenz said. He’d like to see the Biden administration change that.

American Indian judges remain rare. There are currently two active judges who are American Indian, according to Federal Judicial Center data.

That “leaves a gaping hole in American jurisprudence,” said Angela R. Riley, professor and director of the Native Nations Law and Policy Center at the UCLA School of Law, and chief justice of the Supreme Court of the Citizen Potawatomi Nation of Oklahoma.

An American Indian judicial nominee with or without corporate ties might add a much needed understanding of the challenges facing Indian country and tribes to the federal bench, Riley said. “That still brings something.”

Pipeline Problem

The first challenge to getting more diverse judges confirmed to the federal bench is getting people to step forward, said former U.S. district court judge Nancy Gertner, chair of the bipartisan judicial nominations advisory committee for Massachusetts’ Democratic Sens. Elizabeth Warren and Ed Markey.

“Our job is oftentimes convincing legal services lawyers, public defenders, environmental lawyers that they should apply,” said Gertner. “That we meant it when we said they should apply.”

The advisory committee opened up applications in January, received 32 applications, interviewed 22 people over Zoom, and has made its recommendations to the senators, Gertner said. But the commission missed the Jan. 19 deadline the White House requested because they were prioritizing diversity.

Untraditional candidates may be younger and have fewer years of professional experience. They run the risk of not getting a “qualified” recommendation from the ABA, which rates judicial picks. The ABA typically requires nominees to have a minimum 12 years experience as lawyers.

Biden isn’t asking the ABA to vet his selections to the federal bench before they’re nominated as was the practice of the Obama administration, but its ratings still carry some weight during the confirmation process.

Experience Added

Easha Anand, a Supreme Court and appellate lawyer at the MacArthur Justice Center who focuses on criminal defense, was surprised to see her name on the People’s Parity Project list.

Historically, Anand said her background representing prisoners, taking on reproductive rights cases, and making her views on issues publicly known would have been disqualifying.

“I have no illusions about ending up on the bench, but the fact that I’m even a part of the conversation shows how much has shifted in the past couple of years,” Anand said.

Gertner, who now teaches at Harvard Law School, can relate. As she tells it, her resume included representing a “lesbian feminist radical revolutionary accused of killing a cop” and working on abortion and sex discrimination cases. Plus, she married the legal director of the ACLU of Massachusetts.

Gertner says those experiences gave her a different perspective during 17 years as a district court judge in Boston. Her criminal defense background made her ask different questions, such as whether traffic-related stops on a Black defendant’s prior record were racially motivated.

“I added the experience of walking into the courtroom with your client and walking out of the courtroom with him in chains,” Gertner said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com; John Crawley at jcrawley@bloomberglaw.com

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