Changing How Democrats Think About the Supreme Court
By Jeffrey Toobin, The New Yorker
23 August 19
It's remarkable how much time the Democratic Presidential candidates have
spent explicating the details of plans that have no chance of becoming law.
There is, for example, no possibility at all that the Senate will pass any
kind of Medicare for All plan in 2021. But the next President will certainly
have a chance to make appointments to the federal judicial bench-with life
tenure, no less-and the candidates have had almost nothing to say on the
subject. To the extent that Democratic candidates have talked about judges
at all, it's been in the context of opposing Donald Trump's nominees to the
bench. Though the candidates aren't yet talking about the judiciary, some
former officials are trying to force the subject into the political
conversation.
A fledgling liberal organization, Demand Justice, is trying to force the
candidates to take a stand on a provocative proposal for the next Democratic
administration. The group's founders, Christopher Kang, who helped run
judicial selection for President Barack Obama, and Brian Fallon, a former
aide to Hillary Clinton and Chuck Schumer, argue that the next President
should not nominate any judicial candidates who come out of the world of
corporate law. As Kang and Fallon, two insiders to the process, point out,
even in Democratic administrations, there is a recurring pattern among
nominees to the federal bench: "A typical nominee might have an Ivy League
degree and clerkships with one or more respected federal judges," they
write, in a new article in The Atlantic. "But perhaps no qualification is
more prevalent than prior work at a major private-sector firm, representing
the interests of large corporations." As they note, roughly sixty per cent
of federal appellate judges come from corporate firms.
The moment is especially ripe for this proposal. The story of the Roberts
Court is its embrace of corporate power. The court has consistently ruled
against labor unions and for big-dollar campaign contributors, polluters,
and other wealthy interests. Justices Neil Gorsuch and Brett Kavanaugh,
Trump's appointees to the court, have embraced this agenda and appear likely
to push the Court even more dramatically in this direction. Both showed a
particular interest in limiting regulations during their time as
circuit-court judges. Sheldon Whitehouse, a senator from Rhode Island, has
been one of the few Democratic politicians to focus on this issue of
corporate power in the courts; he's even written a book about it. By 2021,
it will be especially important to establish some sort of counterweight to
this trend, because Trump will have made so many appointments, and because
of the possibility of Supreme Court vacancies.
Of course, it's easy to recognize problems with Kang and Fallon's proposal.
Virtually every private lawyer in the country represents a corporation at
one time or another, so it's difficult to identify with precision what
constitutes a "corporate law firm." Also, many lawyers spend brief periods
at firms, even if they devote most of their careers to public service. Sonia
Sotomayor was mostly a prosecutor in her pre-judicial career, and Elena
Kagan was mostly an academic, but both put in some time at law firms, too.
Should that have disqualified them? Indeed, Kang and Fallon's idea seems
like more of a rough guideline than a strict rule. It's a reminder that even
Democratic Presidents like Obama and Bill Clinton have too often limited
their searches for judicial candidates to the usual suspects in the usual
places-products of selective law schools who work in big law firms. Kang and
Fallon write, "There are plenty enough highly qualified individuals with
other backgrounds-civil-rights litigators, public defenders, and legal-aid
lawyers-that the next president can afford to make identifying new kinds of
candidates a priority." Kang and Fallon are speaking directly to the
Presidential candidates, who would be wise to answer, if not to agree.
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