Democrats must start nominating a whole different kind of judge.
If Democrats hope to reverse Trump’s success in seeding the federal judiciary with extreme ideologues, they need to start nominating a whole different kind of judge. For years, presidents of both parties, along with the senators who advise on their judicial selections, have favored a certain kind of résumé, with corporate lawyers and prosecutors dominating the ranks. Unfortunately, public interest lawyers, plaintiffs’ lawyers, public defenders, and progressive academics have been few and far between.
While a judge’s background is not inherently predictive of how she will rule, we need judges from a more diverse array of experiences, who will be better equipped to help their colleagues more fully understand the competing perspectives on the law that come before them.
Instead of elevating corporate lawyers, the next president must nominate judges who understand the impact of the law on all Americans because they have fought for justice and equality; represented plaintiffs, workers, or indigent defendants; or studied the law from that vantage point.
Justice Ruth Bader Ginsburg’s path to the Supreme Court ran through academia and the ACLU, where she worked as a trailblazing litigator on behalf of gender equality. By her admission, that type of background would probably prevent her nomination today. It would also probably preclude the likes of Thurgood Marshall, who founded the NAACP Legal Defense and Educational Fund.
It is time to widen the field of potential candidates for judicial nominations so that it can again include more lawyers like Ginsburg and Marshall. President Obama emphasized the promotion of racial and gender diversity on the bench—an essential goal toward which he made historic strides. The next Democratic president should build on these gains by prioritizing not just demographic diversity but also professional diversity.
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Nominating progressives from these legal careers also will upend the perverse professional incentives that lead young, progressive lawyers who have even the slightest judicial ambitions to choose careers at corporate firms, which have become a politically safe way station. 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.