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Biden Pulled Left in Quest for Judges Outside Corporate Law (1)

Feb. 12, 2021, 3:37 PM

Regina Rodriguez is a near-ideal candidate to be a federal judge by the standards of past Democratic presidents: a Hispanic woman with deep experience as a big-firm lawyer and assistant U.S. attorney in Colorado.

But her recommendation this month by the state’s two Democratic U.S. senators has drawn pushback from liberals. They say the endorsement flouts President Joe Biden’s pledge to staff the federal bench with more civil rights lawyers and public defenders, and fewer corporate attorneys and prosecutors.

“I bet you for that same vacancy I could find you somebody with a very compelling background that would be a woman of color that is not a Big Law partner” or assistant U.S. attorney, said Brian Fallon, executive director of Demand Justice, an advocacy group that pushes for a more liberal judiciary.

The Demand Justice YouTube ad criticizing senator Michael Bennet.
Source: Demand Justice/YouTube

The group has created an advertisement criticizing Colorado’s senior senator, Michael Bennet, for “demanding Biden appoint another corporate law partner.” Bennet spokeswoman Kate Oehl called Rodriguez “an incredibly qualified Latina candidate with a long track record of community service to Colorado’s children and working families.”

The tussle opens a window on Biden’s challenges as he seeks to reshape the judiciary by injecting forms of diversity that sometimes compete with one another: professional, as well as racial, gender and sexual orientation. Biden is trying to balance calls from the left for bold action while seizing what could be a fleeting opportunity to get his nominees through a 50-50 Senate that Democrats control only because of Vice President Kamala Harris’s tie-breaking vote.

Read More: Path Open for Bold Push on Judges -- If Biden Wants It

The Democrat’s judicial push follows four years in which President Donald Trump appointed 234 federal judges, including three Supreme Court justices.

A study last year by the liberal Center for American Progress found that only 1% of federal appeals court judges had spent most of their careers as public defenders or legal-aid lawyers, and none had worked primarily for a nonprofit civil rights group. More than 70% had spent most of their careers in private practice or as federal prosecutors, the study found.

Progressive advocates say they are generally pleased with the new administration’s approach and sense of urgency. Even before Biden took office, his incoming White House counsel, Dana Remus, asked senators to move quickly to identify strong judicial candidates, particularly people who have been public defenders, civil-rights lawyers and legal-aid attorneys.

‘Sea Change’

That “represented a sea change from past Democratic administrations in both the prioritization and being willing to break the mold for who gets nominated,” said Fallon. “Now we view our work as needing to hold senators’ feet to the fire.”

In recommending Rodriguez for a seat on the federal district court in Colorado, Bennet and fellow Democratic Senator John Hickenlooper chose a candidate who was nominated in 2016 by then-President Barack Obama but didn’t get a vote in the Republican-controlled Senate.

Now a partner in Denver with the international law firm WilmerHale, Rodriguez worked for seven years as an assistant U.S. attorney, including three as head of the office’s civil division. Her accomplishments include being named as the Hispanic National Bar Association’s Latina Lawyer of the Year in 2013.

She is the daughter of a Mexican-American father and a Japanese-American mother whose family was sent to an internment camp in Wyoming during World War II, according to an interview on the University of Colorado Law School’s website.

Bennet’s office pointed to her work on behalf of Latino students as a member of the Colorado Commission for Higher Education and her pro bono advocacy in congressional redistricting and immigration cases.

“Regina Rodriguez is one of Colorado’s top attorneys with deep experience in both the public and private sectors,” the two senators said in a letter to Biden last week. “She has also demonstrated a continuing commitment to the community.”

In suggesting Rodriguez, who is in her late 50s, Bennet and Hickenlooper didn’t offer any alternatives, ignoring Remus’s request that senators put forward at least three names for each seat.

Rodriguez didn’t respond to a voice message left at her office phone number.

White House Push

The White House lawyer leading the judicial nomination effort, Paige Herwig, said the administration has reinforced its commitment to finding nominees from underrepresented parts of the legal profession in talks with Democratic Senate staff.

“Professional diversity is what we emphasize the most,” said Herwig, who formerly worked at Demand Justice.

But Herwig added that “it is not our expectation that every candidate will embody every possible type of diversity, which also wouldn’t be possible.” She declined to comment on the Rodriguez recommendation.

Conservatives have decried the effort by liberal groups to pressure Biden over judicial nominations. Demand Justice is a project of the Sixteen Thirty Fund, a non-profit that has injected a gusher of money from anonymous donors into left-leaning causes.

“It’s not surprising that these and other progressive groups have set their sights on our courts, the last obstacle to complete power,” said Adam Laxalt, a former Nevada attorney general and outside counsel to the conservative watchdog group Americans for Public Trust. “One would hope that every senator will put the kibosh on this.”

Influential judicial groups on the right, such as the Federalist Society and the Judicial Crisis Network, are also funded by so-called dark money.

Supreme Court Candidate

Biden inherited 43 federal district court vacancies and two federal appeals court openings -- numbers that have grown as judges announce they are retiring or taking semi-retired senior status. Biden now has six appeals court slots to fill after Judge David Tatel said Thursday he will take senior status, creating a vacancy on the powerful U.S. Court of Appeals for the D.C. Circuit. Another seat on that court will open up soon, assuming the Senate confirms Judge Merrick Garland as attorney general.

U.S. District Judge Ketanji Brown Jackson, a former public defender, is a top candidate to be nominated for one of the D.C. Circuit positions. And with Biden having promised to nominate a Black woman to the Supreme Court, Jackson would be a prime contender in the event her former boss, Justice Stephen Breyer, retires.

Ketanji Brown Jackson
Photographer: Rose Lincoln/Harvard Staff

Biden also has two vacancies to fill on the New York-based 2nd Circuit, which handles an outsize share of the country’s securities and insider-trading cases.

The diversity push comes amid a recognition among Democrats that they haven’t made a priority of judicial nominations in the way Republicans have. In eight years as president, Obama appointed 55 federal appeals court judges, barely more than the 54 Trump appointed in half the time. When Obama left office in 2017, he left behind more than 100 vacancies, including 17 appeals court seats and one Supreme Court opening, for Trump to fill.

One reason was Republican resistance, most notably the Senate’s refusal to consider Garland’s 2016 Supreme Court nomination. But Democrats also accept some blame, saying that neither the White House nor Senate Democrats moved quickly enough to fill vacancies during the Obama years.

Improvement Needed

“There seems to be an understanding that this has to be done better,” said Russ Feingold, a former Democratic senator from Wisconsin who’s now president of the American Constitution Society. “There’s a real understanding that the courts have been stolen by the right.”

Feingold’s organization has sent the White House more than 400 potential judicial nominees, a list heavy with public-interest and plaintiff’s lawyers.

Democrats’ delicate hold over the 50-50 Senate only adds to the urgency, Feingold said. Democrats got a scare in late January when 80-year-old Senator Patrick Leahy of Vermont was briefly hospitalized. Vermont has a Republican governor who would make an interim appointment in the event of a Senate vacancy.

“You have to move fast to deal with these things,” Feingold said.

(Updates to reflect Tatel taking senior status in 23rd paragraph.)

--With assistance from Madison Alder.

To contact the reporters on this story:
Greg Stohr in Washington at gstohr@bloomberg.net;
Jordan Fabian in Washington at jfabian6@bloomberg.net

To contact the editors responsible for this story:
Jon Morgan at jmorgan97@bloomberg.net

Elizabeth Wasserman, Ros Krasny

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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