Justice Filtered: Plans to Manage Diversity in the Federal Judiciary

Since Donald Trump’s inauguration in 2017, his administration has made major changes to the federal judiciary. This includes filling two Supreme Court seats along with a total of 146 confirmed Article III (federal district, appellate, Supreme Courts, and the court of international trade) judges.  Democrats saw their last Supreme Court nominee, Merrick Garland, fade away without a confirmation hearing. The entire balance of the federal judiciary has been transformed over the past couple of years and for the first time in recent history, Democratic groups are trying to make a campaign issue out of federal court reform. Several groups have come forward with plans to reform or transform the federal judiciary to varying degrees. These plans range from Pete Buttigieg’s court packing plan to attempts to employ different procedures for selecting judges and justices. One consistent critique that follows Democratic nominees though is their lack of consensus on a plan for the courts.

Last week, the group Demand Justice headed by Brian Fallon and Christopher Kang laid out a novel plan for judicial reform in an article in The Atlantic.  This plan has the goal of bringing diversity to the federal judiciary and limiting nominees to lawyers that have not worked as corporate “big law” partners. To this end, Fallon and co-author Christopher Kang wrote, “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.”

They follow this by laying out some bare bones methodology for how this would look in practice: “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.”

While corporate law experience may not be the optimal choice to fill 100% of the slots in the federal courts, an effort at increasing diversity is a far cry from total exclusion.  UC Irvine’s Professor Rick Hasen provided a thoughtful response explaining some of the problematic aspects he saw with this plan.  Concurrently, civil rights attorney Sasha Samberg-Champion opined that this proposal could have been designed as a bargaining chip to start the conversation of judicial reform rather than as a (potentially) binding contract. Democratic nominee Elizabeth Warren came out in favor of the substance of the plan, while not clearly on the side of committing to a no corporate lawyer rule.

Even with the laudable notion of a more diverse judiciary, aspects of this plan may actually function towards cutting off the nose to spite the face. That is to say — while diversity is an unquestionably noble attribute and something sorely needed in the courts, means to get there that include excluding a whole subset of incredibly qualified judicial candidates raise potential problems in their own rights.  There are examples of corporate lawyers who became great jurists, just as there are of corporate lawyers who have a penchant to rule in favor of big businesses (a common critique of the Roberts Court from the likes of Senator Sheldon Whitehouse among others).

Leaving the merits of this plan aside for a moment to focus on researching the link between a background as a corporate partner and federal judging, two things are immediately clear. First, there is a lack of ease in researching details of federal judges’ histories.  In terms of free resources, even comprehensive sources like the FJC’s Biographical Directory of Article III Judges lacks specific information on judges’ work experience.  Take for instance Judge Leslie Abrams who sits on the District Court for the Middle District of Georgia.  The FJC’s website lists her law firm experience as “private practice” for the years 2003 through 2010. If we want to learn more, we cannot go to her bio on her court’s website. The court’s website actually doesn’t provide any information about Judge Abrams’ background.  Indeed, the most reliable source for this information appears to judges’ senate questionnaires filled out during the nomination process.  From this we see that Abrams worked as an associate at Skadden Arps and Kilpatrick Townsend during this period (note that Wikipedia and Ballotpedia have biographical information on many federal judges but it is often in summary form and thus is almost always incomplete).

Actually evaluating the merits of this no corporate lawyer as judges policy involves more than just theorizing. The Atlantic article, for example, states that upon examining current federal appeals court judges, “60 percent were once corporate-law partners.” The implications of this statistic are really in the eye of the beholder.  To some this may seem staggering but to others this might be quite obvious. This statistic shows that the backgrounds of federal judges are not representative of the attorney population across the United States as a whole. But is this consequential?  Again, more information may help individual voters determine their positions on this issue for themselves.

It is important to unpack proposals such as that from Demand Justice to understand the ramifications and therefore grasp the costs and benefits of such a plan.  Demand Justice’s methodology for determining who fits within the exclusionary category is a bit vague.  This methodology, as explained earlier, would simply exclude former big law partners and in-house counsel for large corporations from federal judgeships.  One way to begin gauging the merits of such a proposal is through examining what the repercussions would have been had such a plan been in effect at an earlier time. Since this is a proposal for Democratic candidates, we should focus on judges placed on federal courts by a Democratic president.

According to FJC counts, 271 judges were confirmed for their first federal judgeship under President Obama. Obama also nominated several already sitting judges to higher positions (for example Justice Sotomayor from appeals court judge to Supreme Court Justice), but these elevated judges are not the focus here.  One vague point in Demand Justice’s methodology is its description of Big Law partners. While there is no universal definition for a big law partner, firm size is the major determining factor here. This analysis used 50 lawyers in a firm as a cut point between big and small law.  50 lawyers in a firm is generally good indicia that a firm has the capacity to handle matters for large corporate clients, although it is by no means the only way to gauge this.  Big law might mean much larger firms and so the number of judges who previously practiced in such firms might actually be much smaller than those identified herein. Since this notion of a strict cut point for big law is inherently arbitrary though, and because lawyers in a boutique firm might very well handle the same corporate matters as big law attorneys, this at least gives us a place to start the conversation.

Approximately 98 of the 271 new judges or about 36% of the judges identified in this sample worked as partners at big law firms (those over 50 attorneys in size) at some point prior to their nomination for federal judgeship. These 98 judges are composed of one international trade court judge, 15 courts of appeals judges, and 82 district court judges. While Justice Kagan was an associate at Williams & Connolly, she was never a partner and therefore would not be disqualified under the previously described standards.

The following figure has the positions for all 98 judges who would be not be viable nominees if democrats banned nominations of previous big law partners who worked at firms with a minimum of 50 attorneys.

Disqualify.png

*[Note that the firms collected here are determined by size and not by practice specialization. It is entirely possible that some firms would not fit the corporate law model described by Demand Justice. Additional information on exactly what constitutes a corporate firm would help further clarify which firms might not fit into this category.]

Three Obama nominees were previously partners at Morrison Foerster, three at Mayer Brown, and three at Munger Tolles. Munger Tolles employs approximately 200 attorneys including Obama’s Solicitor General, Donald Verrilli. Morrison Foerster has over 1,000 attorneys worldwide and Mayer Brown has over 1,500.

Not all firms on this list have such a large number of attorneys though in multiple offices. Lightfoot Franklin, for example, has two offices, in Houston and Birmingham, and around 60 total attorneys.  When you look at the matters they handle though, many are for large corporate clients and involve large dollar value actions.

Under Demand Justice’s policy, not all potential judges who worked at these firms would be banned from judicial nominations. Several, like Kagan, worked as associates at these firms but did not continue on to the partner level. To get a sense of the firms where more than one of Obama’s first time judges worked as either an associate or a partner, the next figure has these aggregate data.

All Firms

Five of Obama’s first time judges worked at Morrison Foerster. Since we know from the previous figure that three were partners, two must have been associates. The other firms on this list are primarily some of the largest and most successful national and international law firms. These 54 attorneys turned judges hailing from prominent firms in one capacity or another underscores the importance presidents place on experience in highly recognized law practices. This is where many lawyers are trained, and where the majority of lawyers, especially those that matriculate from top tier schools, go after law school.

Law.com regularly details the statistics of law grads that begin their legal work in big law firms. The schools with the highest percent of 2018 grads going on to work in big law firms according to law.com’s statistics were the following:

SchoolBigLaw.png

Columbia had the highest percentage of grads beginning work at large law firms at 78%. The top 10 schools rounded out with Harvard at 58%, Georgetown at 56%, and University of Chicago at 55% of 2018 grads starting their legal careers in big law firms. Suffice it to say that large numbers of lawyers graduating from top schools at least begin their careers in big law.

When we look at Obama’s confirmed judges, many came from the same top tier schools.

Law Schools.png

The vast majority of Obama’s confirmed federal judges came from the top three ranked law schools in the country: Harvard, Yale, and Stanford.  Beyond this, in general we see that Obama’s judges mainly hailed from a handful of top tier law schools, and these law schools were predominately the nation’s top schools, and the schools where the largest percentage of grads went into big law practice.  Perhaps one of the deficits in diversity stems from the few law schools that graduate the majority of federal judges.

Below is a table of all judges that would be potentially banned from seeking judgeships according to the big law partner policy along with their previous employment and the law school they attended.

JudgeJobLaw SchoolCourt Level
Judge Robert BacharachShareholder at Crowe and DunleavyWashington University School of LawU.S. Court of Appeals
Judge Susan CarneyCounsel at Bredhoff KaiserHarvard Law SchoolU.S. Court of Appeals
Judge Morgan ChristenPartner at Preston GatesGolden Gate University School of LawU.S. Court of Appeals
Judge Michelle FriedlandPartner at Munger TollesStanford Law SchoolU.S. Court of Appeals
Judge Pamela HarrisPartner at O’MelvenyYale Law SchoolU.S. Court of Appeals
Judge Andrew HurwitzOsborn MaledonYale Law SchoolU.S. Court of Appeals
Judge William KayattaPartner Pierce AtwoodHarvard Law SchoolU.S. Court of Appeals
Judge Cheryl KrausePartner at DechertStanford Law SchoolU.S. Court of Appeals
Judge Carolyn McHughPartner at Parr BrownUniversity of Utah College of LawU.S. Court of Appeals
Judge Patricia MillettPartner at Akin GumpHarvard Law SchoolU.S. Court of Appeals
Judge John OwensPartner at Munger TollesStanford Law SchoolU.S. Court of Appeals
Judge Jimmie ReynaPartner at Williams MullenUniversity of New Mexico School of LawU.S. Court of Appeals
Judge Srikanth SrinivasanPartner at O’MelvenyStanford Law SchoolU.S. Court of Appeals
Judge Kara StollPartner at Finnegan HendersonGeorgetown University Law CenterU.S. Court of Appeals
Judge Paul WatfordPartner at Munger TollesUniversity of California, Los Angeles, School of LawU.S. Court of Appeals
Judge Jennifer GrovesPartner at Hughes HubbardColumbia Law SchoolU.S. Court of International Trade
Judge Madeline ArleoPartner at Tompkins, McGuire, Wachenfeld & Barry, LLPSeton Hall University School of LawU.S. District Court
Judge Kristine BakerPartner at Quattlebaum, Grooms, Tull & BurrowUniversity of Arkansas School of LawU.S. District Court
Judge Stanley BastianPartner at Jeffers, Danielson, Sonn & Aylward,University of Washington School of LawU.S. District Court
Judge Wendy BeetlestonePartner at Schnader, Harrison, Segal & Lewis LLPUniversity of Pennsylvania Law SchoolU.S. District Court
Judge Cathy BencivengoPartner at DLA PiperUniversity of Michigan Law SchoolU.S. District Court
Judge Loretta BiggsPartner at Davis, Harwell & Biggs and in-house at Coca-ColaHoward University School of LawU.S. District Court
Judge Cathy BissoonDirector at Cohen GrigsbyHarvard Law SchoolU.S. District Court
Judge Timothy BlackDirector at Graydon HeadNorthern Kentucky University, Salmon P. Chase College of LawU.S. District Court
Judge Victor BoldenCounsel at Wiggin and DanaHarvard Law SchoolU.S. District Court
Judge Vernon BroderickPartner at Weil GotshalHarvard Law SchoolU.S. District Court
Judge Debra BrownShareholder at Wise Carter Child & CarawayUniversity of Mississippi School of LawU.S. District Court
Judge Nannette BrownPartner at Chaffe McCallTulane University Law SchoolU.S. District Court
Judge Allison BurroughsPartner at Nutter McClennenUniversity of Pennsylvania Law SchoolU.S. District Court
Judge Claire CecchiPartner at McElroy, Deutsch, Mulvaney & CarpenterFordham University School of LawU.S. District Court
Judge Julianna ChildsPartner at Nexsen PruetUniversity of South Carolina School of LawU.S. District Court
Judge Theodore ChuangCounsel at WilmerHaleHarvard Law SchoolU.S. District Court
Judge Tanya ChutkanPartner at Boies SchillerUniversity of Pennsylvania Law SchoolU.S. District Court
Judge Mark CohenPartner at Troutman SandersEmory University School of LawU.S. District Court
Judge William ConleyPartner at Foley LardnerUniversity of Wisconsin Law SchoolU.S. District Court
Judge Christopher CooperPartner at Baker BottsStanford Law SchoolU.S. District Court
Judge Daniel CrabtreePartner at Stinson MorrisonUniversity of Kansas School of LawU.S. District Court
Judge Waverly CrenshawPartner at Waller LansdenVanderbilt University Law SchoolU.S. District Court
Judge Jon DeGuilioPartner at Barnes and ThornburgValparaiso University Law SchoolU.S. District Court
Judge Pedro Delgado HernándezPartner at O’Neill & BorgesUniversity of Puerto Rico School of LawU.S. District Court
Judge James DonatoPartner at CooleyStanford Law SchoolU.S. District Court
Judge Thomas DurkinPartner at Mayer BrownDePaul University College of LawU.S. District Court
Judge Sara EllisCounsel at Schiff HardenLoyola University Chicago School of LawU.S. District Court
Judge Paul EngelmayerPartner at WilmerHaleHarvard Law SchoolU.S. District Court
Judge Katherine FaillaPartner at Morgan LewisHarvard Law SchoolU.S. District Court
Judge Gary FeinermanPartner at Mayer BrownStanford Law SchoolU.S. District Court
Judge Audrey FleissigPartner at Peper, Martin, Jensen, Maichel and HetlageWashington University School of LawU.S. District Court
Judge Katherine ForrestPartner at CravathNew York University School of LawU.S. District Court
Judge Haywood GilliamPartner at Bingham McCutcheonStanford Law SchoolU.S. District Court
Judge Mark GoldsmithPartner at Honigman MillerHarvard Law SchoolU.S. District Court
Judge Madeline HaikalaPartner at Lightfoot FranklinTulane University Law SchoolU.S. District Court
Judge LaShann HallPartner at Morrison FoersterHoward University School of LawU.S. District Court
Judge Ellen HollanderPartner at Frank, Bernstein, Conaway & GoldmanGeorgetown University Law CenterU.S. District Court
Judge Charlene HoneywellPartner at Hill WardUniversity of Florida College of LawU.S. District Court
Judge Mark HornakPartner at Buchanan IngersollUniversity of Pittsburgh School of LawU.S. District Court
Judge Diane HumetewaCounsel at Squire SandersArizona State University College of LawU.S. District Court
Judge Amy JacksonPartner at VenableHarvard Law SchoolU.S. District Court
Judge Brian JacksonLiskow and LewisGeorgetown University Law CenterU.S. District Court
Judge Ketanji JacksonCounsel at Morrison FoersterHarvard Law SchoolU.S. District Court
Judge Richard JacksonPartner at Holland and HartHarvard Law SchoolU.S. District Court
Judge Abdul KallonPartner at Bradley ArantUniversity of Pennsylvania Law SchoolU.S. District Court
Judge Lucy KohPartner at McDermottHarvard Law SchoolU.S. District Court
Judge John KronstadtPartner at Arnold & PorterYale Law SchoolU.S. District Court
Judge William KuntzPartner at Seward & KisselHarvard Law SchoolU.S. District Court
Judge John LeePartner at Freeborn & PetersHarvard Law SchoolU.S. District Court
Judge Matthew LeitmanPartner at Miller CanfieldHarvard Law SchoolU.S. District Court
Judge John McConnellPartner at Motley RiceCase Western Reserve University School of LawU.S. District Court
Judge Travis McDonoughPartner at Miller and MartinVanderbilt University Law SchoolU.S. District Court
Judge Kevin McNultyPartner at Gibbons PCNew York University School of LawU.S. District Court
Judge Amit MehtaPartner at Zuckerman SpaderUniversity of Virginia School of LawU.S. District Court
Judge Laurie MichelsonPartner at Butzel LongNorthwestern University School of LawU.S. District Court
Judge James MoodyPartner at Wright, Lindsey, JennignsUniversity of Arkansas School of LawU.S. District Court
Judge Raymond MooreParner at Davis GrahamYale Law SchoolU.S. District Court
Judge Randolph MossPartner at WilmerHaleYale Law SchoolU.S. District Court
Judge Susan NelsonPartner at Robins KaplanUniversity of Pittsburgh School of LawU.S. District Court
Judge James OetkenGC at Cablevision SystemsYale Law SchoolU.S. District Court
Judge William OrrickPartner at Coblentz PatchBoston College Law SchoolU.S. District Court
Judge Gerald PappertPartner at Ballard SpahrNotre Dame Law SchoolU.S. District Court
Judge Linda ParkerPartner at Dickinson WrightGeorge Washington University Law SchoolU.S. District Court
Judge Jill ParrishPartner at Parr BrownYale Law SchoolU.S. District Court
Judge James PetersonPartner at Godfrey KahnUniversity of Wisconsin Law SchoolU.S. District Court
Judge Edgardo RamosPartner at Day PitneyHarvard Law SchoolU.S. District Court
Judge Yvonne RogersPartner at CooleyUniversity of Texas School of LawU.S. District Court
Judge Robin RosenbergPartner at Holland & KnightDuke University School of LawU.S. District Court
Judge Lorna SchofieldPartner at DebevoiseNew York University School of LawU.S. District Court
Judge Richard SeeborgPartner at Morrison FoersterColumbia Law SchoolU.S. District Court
Judge Michael SheaPartner at Day PitneyYale Law SchoolU.S. District Court
Judge Robert ShelbyPartner at Snow ChristensenUniversity of Virginia School of LawU.S. District Court
Judge Michael SimonPartner at Perkins CoieHarvard Law SchoolU.S. District Court
Judge Josephine StatonPartner at Morrison FoersterHarvard Law SchoolU.S. District Court
Judge Leonard StrandPartner at Simmons PerrineUniversity of Iowa College of LawU.S. District Court
Judge Indira TalwaniPartner at Altshuler BerzonUniversity of California, Berkeley, Boalt Hall School of LawU.S. District Court
Judge John TharpPartner at Mayer BrownNorthwestern University School of LawU.S. District Court
Judge Jon TigarPartner at Keker & Van NestUniversity of California, Berkeley, Boalt Hall School of LawU.S. District Court
Judge Michael UrbanskiPartner at Woods RogersUniversity of Virginia School of LawU.S. District Court
Judge Derrick WatsonPartner at Farella Braun + MartelHarvard Law SchoolU.S. District Court
Judge Robert WilkinsPartner at VenableHarvard Law SchoolU.S. District Court
Judge Gregory WoodsPartner at DebevoiseYale Law SchoolU.S. District Court

 

Many of the judges who would not be disqualified under this big law partner rule worked in private practices as solo practitioners or with a limited number of partners. This does not necessarily mean they represented different clients than other judicial nominees, but with smaller firms they likely had fewer resources to manage multiple large accounts. Thus, firm size might be a good proxy for the extent of this type of business a firm or attorney can handle.

In the end this is a question of what matters in judging. Even if we take the importance of diversity on the federal bench as a given, the means to seek this are still unclear.  The bottom line is that voters need to ask themselves what needs to be reformed. We have clusters of judges coming from a top law schools, going into big firm jobs, and we see some continue in these jobs while others go into public interest work, academia, or other non-big law jobs.  Many of Obama’ picks for federal judges worked in the big law world and a large minority went on to become partner in such firms. This may affect the the way they decide cases, but other factors such as political preferences have been shown to explain a large percentage of voting behavior as well.  Further statistical research into this subject may illuminate whether the relationship between practicing as a big law partner and supporting corporate interests in judging is truly robust. Without this research such inferences remain at least somewhat speculative.

Ultimately, voters need to decide what the most important factors are in choosing future federal judges just as politicians must decide on certain criteria that will determine the pool of potential judges they choose from. This may be related to judges’ previous work experiences although this equally may be related to other factors that influence judges’ decisions.  More studies and greater resources may help us understand the correlates between judges’ backgrounds and votes for corporate causes. At this point though, even if the public’s goal is to minimize judges’ votes for corporate causes, the direct link between practicing as a corporate partner and such votes is unclear, and evidence is sparse that practicing as a corporate partner is the most decisive attribute leading to such voting practices.


On Twitter: @AdamSFeldman

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