The next Democratic administration should make upending these professional incentives a priority. A career representing indigent defendants or working as a civil-rights lawyer at a public-interest organization should be an asset in progressive circles, not a liability. Republicans aggressively promote judicial nominees who have worked at right-wing advocacy organizations or who have advanced conservative causes, while Democrats unilaterally eschew the political fights that come with such picks. The next Democratic president must break this mold.
In the first three years of Trump’s presidency, Democratic politicians have been quick to grab the bullhorn at airport protests to cheer on lawsuits against Trump’s travel ban, or to urge on legal challenges to Trump’s ban on transgender individuals serving in the military. Many of these lawsuits have been filed by lawyers at groups such as the ACLU. When Democrats regain power, they should keep the faith with the public-interest lawyers who brought those lawsuits and consider them for potential vacancies on the federal bench. If Democrats truly want the next president’s arrival to mark an inflection point when it comes to the composition of the judiciary, we should elevate those whose full-time jobs were on the front lines defending our democracy during this dark period, not those whose paychecks were drawn from corporate clients.
Admittedly, faithfully adhering to the type of no-corporate-lawyer rule we are proposing will not be easy. For starters, there is the question of how to define who counts as a corporate lawyer. We would define it as a lawyer who achieves partner status at a corporate-law firm—such as the large firms known collectively as Big Law––or who serves as in-house counsel at a large corporation. This would mean lawyers who briefly worked as associates at firms during an early phase in their career would not be excluded.
This would, without question, leave many worthy judicial candidates out of the running. Current appellate-court judges such as Paul Watford and Pam Harris—two names whispered as potential Supreme Court picks by a future Democratic president—were partners at major firms before joining the bench. What’s more, if our standard were in effect in 2009, Sonia Sotomayor—a former corporate-law partner—could not have been picked by Obama.
But our point is not that corporate lawyers are incapable of becoming fair-minded judges. A judge’s legal background is not inherently predictive of how she will rule. Sotomayor herself is proof of that; so, too, is Jon Tigar, a former corporate lawyer who now sits on the federal bench in San Francisco and whom Trump derided as “an Obama judge” following Tigar’s ruling to temporarily block Trump’s asylum ban.
Our point, rather, is that the federal bench is already filled with enough corporate lawyers, and that the law is being skewed in favor of corporations, giving them astonishing power. And for all the examples of progressive judges who spent time in Big Law, there are many more brilliant legal minds whose backgrounds too often, perversely, prevented their consideration for the bench. 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 types of candidates a priority.