President Joe Biden’s judicial nominees with experience as federal public defenders are pleasing progressives seeking more professional diversity while providing fodder for Republicans questioning whether they’re prepared to handle complex civil litigation.
Tension was most evident when Second Circuit nominee and public defender Eunice Lee, admitted she didn’t know what entitled a party to a civil jury trial during a series of questions about civil procedure from Sen. Tom Cotton (R-Ark.) at her June 9 confirmation hearing.
Republicans say they’re concerned by the knowledge gaps as well as about whether progressives want public defenders because they might bring sympathetic views of criminal defendants to the bench. To observers, such questions are just another form of judicial confirmation partisan posturing and ignore the fact that no judge is familiar with every area of law at the outset.
“It is inevitable that lawyers will not have experience in many areas that they will have to handle as judges,” Brian Fitzpatrick, a professor at Vanderbilt and a former aide to Sen. John Cornyn (R-Texas), a member of the Judiciary Committee now vetting Biden picks. He added that “using this argument against nominees is largely gamesmanship that both parties play.”
Progressive groups have called on Biden to select judicial nominees with more diverse professional experience, whether representing criminal defendants, workers, or civil rights plaintiffs and consumers, rather than the traditional path through corporate law firms and U.S. attorneys offices.
Biden appears to be listening. Of his 19 life-tenured judicial nominees announced thus far at least eight have worked as public defenders, including two appeals court nominees considered at the June 9 hearing, Lee and Veronica Rossman, a nominee to the U.S. Court of Appeals for the Tenth Circuit.
Lee told Cotton that she wasn’t familiar with all of the civil procedure rules because her practice was mostly in criminal law.
“Certainly, though, I have experience, as I noted before, in terms of figuring out new issues when they’ve been presented to me and determining what the law is and how it applies to the particular circumstances,” Lee said.
The New York-based Second Circuit where she’s ticketed for is a chief venue for cases involving corporations and Wall Street.
Rossman faced questions from Sen. Josh Hawley (R-Mo.) about the criminal records of a couple of clients she had represented in compassionate release cases. Those have been prevalent during the pandemic as inmates with health issues appeal for early release from prison.
In asking about one client who threatened to harm his family and was stockpiling illegal weapons, Hawley said, “why would the danger to the community be outweighed by, in this case, health issues?”
Rossman, who works in Denver, said that all of the appeals she’d made on behalf of clients were within the bounds of the law.
On June 10, Sen. Chuck Grassley (R-Iowa) said nominees with backgrounds primarily in criminal defense “may not be up to the task of serving as a generalist judge” at a committee markup. He also said, “we need to carefully scrutinize these federal defender nominees because the left seems to think they’ll rule in a certain way.”
Grassley at that markup voted not to advance Deborah Boardman, a nominee to the District of Maryland, because of her experience as a public defender and dissatisfaction with her answers to questions about constitutional law during her hearing. Her nomination advanced in a party-line, 11-10, vote.
Democrats have touted the diverse professional experience of nominees at hearings, saying their backgrounds will only improve the bench.
“We need in our judiciary a reflection of America across the board—demographics and professional experience,” Judiciary Committee Chair Richard Durbin (D-Ill.) said at Lee and Rossman’s hearing.
Durbin pointed to the small number of public defenders on the appellate bench, noting experience as a federal prosecutor is more common.
Ed Whelan, a fellow at the conservative Ethics and Public Policy Center who writes about nominations, said the questions from Republican senators so far, like Cotton’s inquiries to Lee about civil procedure, have exposed “some of the limitations” in nominee records.
That said, “different people are going to have different backgrounds and bring different things to the court,” Whelan said. Probing nominees during the hearings is “part of the process,” he said.
Democrats criticized 10 of President Donald Trump’s nominees deemed not qualified for the judiciary by the American Bar Association for various reasons. But they also questioned the credentials and preparedness for the judiciary of many more who were confirmed in the Senate then controlled by Republicans, including corporate attorneys and those with experience as state solicitors general.
Nan Aron, founder and president of the liberal Alliance for Justice, said having public defenders on the bench “renders more-informed, thorough decisions” and called the questions from Republicans “obstruction.”
Neal Devins, a professor of law and government at William & Mary Law School who studies the judiciary and the judicial nominations process, said very few nominees will have experience in every area of the law that comes before the court to which their nominated. Bringing criminal experience to a more generalist court isn’t a handicap. “If anything it’s an asset,” he said.
Going forward, the inquiries might be used to bring up some of the more unsavory details of a nominee’s criminal clients’ record into the hearings, Devins said.
Senators try to do what they can to “have the attorney seem like they are out of the mainstream by pointing to clients that are out of the mainstream in their behavior,” Devins said.