August 30, 2019

"My decision to accept an offer in Big Law was not driven by any allegiance to corporations or any Machiavellian analysis of whether it would be a springboard for future political ambitions."

"... Instead, it was a matter of practicality. To have enough money to pay off my student loan debt, which totaled more than $100,000 after three years of legal education, and send money home to support family members, I needed the six-figure salary that my firm was offering. Big Law offered an opportunity to earn enough money to lift myself, and by extension my family, out of poverty and into the middle class.... Many attorneys of color are in the same position...."

Writes Erika Stallings in WaPo, responding to "No More Corporate Lawyers on the Federal Bench/The next Democratic president should try nominating judges who haven’t been partners at big law firms" by Brian Fallon and Christopher Kang, founders of something called Demand Justice (in The Atlantic). Fallon was an aide to Chuck Schumer, and Kang was an aide to Dick Durbin.

As Stallings puts it, Demand Justice "believes that the number of judges with ['Big Law'] experiences creates an 'insular, back-scratching network of legal elites who work together to promote corporate interests.' But not everyone who works at a corporate law firm is the same. And in trying to purge corporate influence from the judiciary, Demand Justice risks making the ranks of judges more homogenous in another way: namely, whiter and richer."

From Fallon and Kang:
[O]ur 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... 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.

In the coming weeks, Demand Justice will propose a list of potential judicial selections whom the next Democratic president should consider. We are confident that the exercise will prove there is no shortage of qualified picks who have chosen paths in public-interest work, labor law, academia, or other fields that deserve to be represented on the federal bench....

Democrats... must stock the federal judiciary with judges who have a more diverse array of experiences, who can help their colleagues more fully understand the competing perspectives on the law that come before them.
This is an interesting conflict. Stallings stresses the importance of racial and class diversity, things law schools take into account at the point of admission, and Fallon and Kang stress diversity in post-law-school experience. Stallings looks at the problem from the point of view of the career-seeking lawyer, and Fallon and Kang are talking about the way cases are decided.

77 comments:

rhhardin said...

So much for following the law.

Kevin said...

rhhardin wins the thread.

“Representation” is so often a canard for the real objectives that we should immediately cut to the chase.

The proof arises every time a diverse officeholder is called out for insufficiently changing the system.

Ralph L said...

How many legal aid/public defender/etc lawyers have Federal law experience? Isn't that more important?

narciso said...

So a hillary foundation spokesman and schumer aide say what?

Ralph L said...

Then of course 2 political activists want to choose from activists, for predictability if not self-interest.

Kevin said...

Diversity bullshit.

If they could get nine white, male, corporate lawyers to overthrow the Constitution, diversity would no longer matter.

MadisonMan said...

Simply ban appointments of graduates from the top ten Law Schools. Problem solved.

Rocketeer said...

I too am concerned the judiciary is becoming a club whose members are a back-scratching legal elite; it's resulting in a two-tiered Justice system which treats the privileged and connected differently from the rest of us.

The real solution, though, is to appoint competent not-lawyers as judges - I'm quite serious.

narciso said...

No one familiar with the constitution need apply.

Fritz said...

I like that she has disqualified herself.

rehajm said...

Willing to settle for white ones willing to ignore the law to promote leftie political agenda, though.

Tina Trent said...

Nonprofits and academia breed extraordinary myopia.

Want diversity? Look to the ordinary business world.

SDaly said...

The push for "diversity" judges goes hand-in-hand with the increasing use of arbitration by sophistiacated parties.

Shouting Thomas said...

When the victim classes want stuff, they are noble, self-sacrificing and deserving.

When white men want stuff, they're bad.

Yeah, I've heard this shit before.

Chuck said...

Much as I like the Trump federal judicial nominees, I think that he set a bad precedent for our politics with his explicit promises of specific judges. It will work both ways going forward.

It was the one, single smart deal he has undertaken in his entire presidential journey; to make a promise to mainstream GOP/establishment and Federalist Society fans, as to Supreme Court picks. It got Trump my vote. It was a bad deal all the way around.

Wilbur said...

Yes Chuck, the courts haven't been politicized for the last 60+ years. It was Trump's "explicit promise" that threw the turd in the punchbowl.

If he hadn't made this promise, would you have not voted for President or voted for someone else?

Ralph L said...

But it worked, Chuck, and after decades of wet Republican Supremes from Earl Warren on, it was good to know he wasn't likely to appoint another one.

Temujin said...

I hear the Wisconsin School of Law cranks out some fine minds. Or, at least it used to.

It's Big Ten opening weekend. Go Sparty.

Fen said...
This comment has been removed by the author.
David Begley said...

“that the law is being skewed in favor of corporations,”

Any proof of that?

Brian Fallon worked for Hillary. He’s been on TV since her well-deserved defeat. He was also a big impeach Trump guy. Now it looks likes his new gig is a contra Federalist Society in the judge picking business.

Fen said...

I'm with Rocketeer:

"The real solution, though, is to appoint competent not-lawyers as judges"

Fen said...

And if these two really want to Demand Justice, I can show them where to start.

ConradBibby said...

Appointing people who are not lawyers would be a disaster for anyone who believes in the rule of law. It means we would have decisions made solely at whim by people with no understanding of legal precedent or history. Believe me, the left would LOVE such a reform because it would mean all judicial decision-making could be based on the desired social outcome and they wouldn't even have to bother trying to make their decisions fit into a coherent theory of legal analysis.

Chuck said...

Blogger Ralph L said...
But it worked, Chuck, and after decades of wet Republican Supremes from Earl Warren on, it was good to know he wasn't likely to appoint another ome.


Oh baloney. The Bushes gave us Thomas, Roberts and Alito.

The difference has been the Federalist Society, Heritage and Mitch McConnell. Along with the total nuclear breakdown of judicial filibusters. Any Republican president going forward will make judicial nominations that look like Trump’s. And any Democratic president going forward will make the most liberal picks that can clear a Senate majority. If the Dems get that majority, the picks will be extremist-liberals.

Anonymous said...

"Many attorneys of color are in the same position...."

Maybe there's "an interesting conflict" here but I can't take anyone who uses the phrase "...of color" with a straight face seriously.

The ovine acceptance of brain-deadening newspeak terms, not just by the self-consciously woke but by people who really should know better, is disturbing.

Ray - SoCal said...

Is Judge Thomas considered an attorney of color?

Can we get more like him?

Bruce Hayden said...

"The real solution, though, is to appoint competent not-lawyers as judges"

I will respectfully disagree, and use this example to make my point.

AZ has, or at least had, non lawyer Justices of the Peace (JPs), as we currently do here in MT. They get the traffic citations and low level misdemeanors. I was cited for exiting the freeway other than at an exit. I was allegedly in the process of exiting, but was still legally on the freeway. My defense was that that wasn’t a crime or civil infraction under AZ law. If I had completed the alleged exiting, that would have been a civil infraction (equivalent to a minor speeding ticket). But what they were alleging was Attempt, which is an inchoate crime. Under AZ law, for the most part, inchoate crimes like Attempt and Conspiracy were one level below the crime they were related to. So, if if Premeditated Murder was a Class 1 felony, Attempted Premeditated Murder was a Class 2 felony. And the relevant criminal statute worked that way all the way down, with the inchoate form of the lowest level misdemeanors being civil infractions. Nowhere to go from there though, since civil infractions are the lowest “crime” in AZ.

Essentially, my defense was that my alleged actions did not legally constitute a crime under AZ law.

It went to trial with the JP, and not being a real trial attorney, my trial record was not great. I lost, of course, because the state trooper said I had committed a crime. My providing the JP copies of the relevant statutes was unavailing. So, I appealed, and got a real judge. My record, though not great, was good enough. He remanded. Which said to the Justice Court that they needed to retry me. They did, before a different JP. This time I got a much better trial record, where I got the DPS officer to lay out the freeway boundaries, and admit that I hadn’t crossed them. Lost again, because, again, the DPS agent said that I had committed a civil infraction, and he was the expert. My defense about civil infractions under AZ law not having inchoate counterparts (think Attempted Speeding, or Conspiracy To Run A Stop Sign) was again unavailing. I again appealed, and got the same judge to hear it. I showed up for the hearing, and he had one question: Was this the same case he had heard the previous year. When I said “Yes”, he exploded. After a bit of a non judicial diatribe, he dictated a multiple page order to the Justice Court that when he said “Remand” he meant “Dismiss”, and if he ever saw this sort on nonsense again before him, he would have them up in front of him on contempt.

Neither JP understood what an inchoate crime was. This is something that you need to know to pass the bar. And neither seemed to completely grasp that crimes have elements, that each have to be shown to have been met for a criminal or quasi criminal conviction. Something that every law school grad should have learned as a 1L. My Civil Infraction trials risked points on my license, and a fine, which were no big deal. I could fight the ticket because my lawyer worked free, and I had a bored legal secretary working for me. Besides, I let her run her husband’s business on the side, so she was quite willing to help out. But these JPs are empowered to send people to jail for up to a year. And, having sat through court waiting my turn a couple times, the bulk of their work involves misdemeanors (which can result in jail time), and not civil infractions (which can’t).

Imagine that these JPs were trying felony cases, which can result in long prison terms, instead of just misdemeanors and civil infractions. That is, in my mind, what you are advocating, with your suggestion that (competent) non attorneys be used as judges. How do you guarantee competency? Easiest way is to require admission to the state bar, which mostly requires graduation from law school.

Bruce Hayden said...

“How do you guarantee competency? Easiest way is to require admission to the state bar, which mostly requires graduation from law school.”

That is not to say that there aren’t incompetent judges, who were former lawyers. There are, of course. I remember one Denver domestic court judge who had not ruled in favor of the guy for years. Under CO law, with judicial retention elections every several years, it is extremely hard to get rid of judges like her. But I can think of no other test of minimal competency than the state bar exam, that would do better at predicting minimal competency in judges.

Birkel said...

Will that list still be useful on January 21, 2025?

Wilbur said...

I truly understand the urge to reject the notion of lawyers to be the judges, but it's a knee-jerk reaction. The reasons given above point out the significant down side.

The problem is not that lawyers are judges, it's who the lawyers are.

Tank said...

Well said Conrad and Bruce.

Birkel said...

It would be nice to see hundreds of Sheriff Andy Taylors on the federal bench.
Maybe justice (and not social justice) should be the goal.

Birkel said...
This comment has been removed by the author.
Mark said...

So they don't like the "insular, back-scratching network of legal elites who work together to promote corporate interests."

Instead, what they want is an insular, back-scratching network of legal elites who work together to promote their own ideolgical interests.

Ray - SoCal said...

I appreciate Trumps judicial nominees, they have been a huge return to sanity for the Federal Courts.

Mcconnell seems to be slow walking the confirmations, lots if openings still, and he has blocked recess appointments.

Most up to date list I have found:
WikiPedia Trump Federal Court Nominations

I have not found a similar list for executive branch nominations / confirmations.

Birkel said...

That racist ass hole Chuck mentioned Roberts.

Drink!

MadTownGuy said...


From Fallon and Kang:

"[O]ur 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... 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."

Aldous Huxley on power:
"Remember that phrase of Karl Marx's: 'Force is the midwife of Progress.' He might have added -- but of course Belial didn't want to let the cat out of the bag at that early stage of the proceedings -- that Progress is the midwife of Force."

The Progressive movement is the heretical offshoot of the Republican Party, based in part on the premise that corporations have too much power. Its solution is to hand more power to the State. No consideration is given to how that power may (will) be used against those who Progressives purport to represent.

Dave Begley said...

Does America want the best and brightest lawyers as federal judges or not? There are not many federal judge slots open each year. Big Law usually - but not always - hires the best. Big Law, however, doesn't have a monopoly on good lawyers.

When I was an ALJ, I had Legal Aid and Big Law lawyers appear before me. The Legal Aid people were the worst. One Big Law lawyer was nearly as bad. Two of the best were Big Law lawyers. One was the son of a federal judge and the other - Bob Rossister - became a federal judge.

Bob and I were on law review together. He was one of the best lawyers in the entire state. Obama appointed him. A "diverse" state judge applied for the federal judge job. I appeared before him. One of the worst judges in the entire state. I just hope he didn't commit any non-harmless errors in the quadruple "Creighton" murders.

Brian Fallon is a complete hack. The idea of him providing a pool of diverse activist hacks for President Biden to select from is a scary idea. Another reason to re-elect Trump.

Dave Begley said...

I should add that the "diverse" state court judge is white.

Howard said...

Big Law = Deep State

Ken B said...

I think they both have a point: there is something wrong with the way Democrats appoint judges. They should just stop doing so: better than nothing is a high standard.

PJ said...

the law is being skewed in favor of corporations, giving them astonishing power

Isn’t this just code for “we still haven’t gotten over Citizens United”?

Howard said...

Blogger Shouting Thomas said...

When the victim classes want stuff, they are noble, self-sacrificing and deserving.

When white men want stuff, they're bad.


No, the white man is just a pussified snowflake under that scenario. Read Rudyard Kipling

Birkel said...

Regulatory capture is real. James Buchanan won a Nobel Prize for his work on the point.

https://www.nobelprize.org/prizes/economic-sciences/1986/buchanan/facts/

The Leftist Collectivist author is correct on the point of helping corporations. But it is the consolidation of power that allows corporations to do so. The conclusion that more centralization will work - this time - is stupid. It's just fucking stupid. It's about assuming a stagnant pie and the working to diminish the pie.

The answer is decentralization. Free people. Free markets. Distributed benefits that lead to a larger pie.

Static Ping said...

Chuck: Much as I like the Trump federal judicial nominees, I think that he set a bad precedent for our politics with his explicit promises of specific judges. It will work both ways going forward.

It was working that way for Democrats for decades, so I'm not really seeing the loss. Much of the Trump Era has been about Trump pointing out the obvious, admittedly often in crass ways, that everyone else was pretending not to notice. Democrats always nominated judges based on how they were going to decide cases, which is necessarily in bad faith, so the precedent was already set and long established. On the plus side, typically "Republican" judges are much closer to actual Constitutional legal reasoning as opposed to judges that find "penumbras" and "dignity" and similar nonsense to be compelling legal arguments.

Otto said...

Well Ann(the 60s liberal) how does it feel to be a prime mover ( 30 years as a law professor) in changing the once professional field of law into a field of dirty political thuggery.

Dave Begley said...

Otto:

That was uncalled for. No evidence of that.

Birkel said...

Dave Begley,
Academic attorneys deserve a lot of blame. Perhaps we can single out others, like Larry Tribe?

Otto said...

@DB What is uncalled for, that the law field has become rancid or that Ann was a prime mover ?

Drago said...

Static Ping: "It was working that way for Democrats for decades, so I'm not really seeing the loss."

That's precisely the thing that "was working" for LLR Chuck. Once the republicans started fighting back against the dems and making the dems live by their own rules is what upsets Chuck so greatly.

Chuck lives for the day when the republicans return to Full Surrender mode so that we can all avoid becoming exhausted from pushing back against the dems.

Drago said...

Howard: "Big Law = Deep State"

Not all of Big Law = Deep State.

But there is no question that Big Law/Lawfareblog is at the center of the far left ploys to execute lawfare strategy against republicans and conservatives.

This is why LLR Chuck has so frequently linked to his lefty pals at Lawfareblog.

Leland said...

I say they have it exactly backwards. Rather than prohibit people from entering the government that have similar commercial experience. There should ban government employees from obtaining business with firms that once were regulated or otherwise did business with their governmental division.

Jupiter said...

"Demand Justice", hey. How about Brian Fallon and Christopher Kang, dangling from the same lamppost? With crudely-lettered signs around their stringy necks saying "parasite".

Tom T. said...

Having worked in large law firms, I can assure you that even the most corporate-facing ones are loaded with plenty of Democrats.

tommyesq said...

A judge’s legal background is not inherently predictive of how she will rule. Sotomayor herself is proof of that...

How is Sotomayor proof of this? She was a DA and then worked for nine years in commercial litigation - hardly a"corporate crony" type of lawyer. If anything, Sotomayor is proof that a judge's political background is inherently predictive of how she will rule.

tommyesq said...

Also, I call bullshit on anyone who took $100,000+ in loans but "didn't really want" to take a big-law job. They signed up for that as soon as they signed the loan agreement, and if they couldn't foresee that, they don't have enough competence to decide who should be a judge.

Tina Trent said...

@Dave Begley: law schools have become such dens of ideological hackery that the standard courses are now often dumped on non-tenured temp profs so the tenured ones can spend all their time practicing dangerous and powerful boutique political activism, especially the blood-soaked neutering of criminal justice.

Probably better for the students that way, actually. Take the temp prof's classes. He or she is probably better connected to the reality-based legal community anyway.

None of this is to imply there aren't exceptions or that Althouse is not one of them.

But the sheer transformation of law schools into extremely well-connected lobbying firms creates a pipeline for more activism among judges.

Would our system be improved or the opposite if we had a separate educational track for training people specifically to become judges, as they do in Germany and some other European countries?

gspencer said...

If a black lawyer gets into Big Law there's a good chance he/she got into law school in the same way. Affirmative Action via unjustified White Guilt.

Amadeus 48 said...

I am not buying it. Some of the most biased, uni-dimensional lawyers out there work for advocacy and public interest groups. They look at problems through one lens. Corporate lawyers have a lot of information and interests to juggle in serving their clients. They are realists.

Dave Begley said...

Tina Trent.

Not a Creighton and Nebraska. Very few temp faculty. I had two adjunct profs. One was Eighth Circuit Judge Donald P. Lay and the other was a trial lawyer with Big Law in Omaha. Great profs!

Douglas B. Levene said...

The only good thing about this is that it might force the Democratic candidates to start listing their candidates for SCOTUS. Let the sun shine in, I say.

Tina Trent said...

Dave Begley

It's a pretty recent phenomenon, hiring part-timers in law schools so the tenured may practice their hobbies. I've heard of Lay for some reason. Nothing better than a good teacher.

I know an interesting law professor who isn't a lawyer but an historian. Great writer and while I never took a class from him, his books and advice were more helpful to me than all but a few of the professors I did study with. He is capable of being very political on his own time while still being accessible to any student. Few seem to care to walk that line anymore.

The need to publish academically has blighted legal education the way it blights the humanities. I suspect that's part of why practicing attorneys are actually better at training future practicing attorneys than 90% of the current crop of law profs.

Bruce Hayden said...

I loved adjunct law professors. Much better, on average than full time faculty. Here are some of the adjuncts I had:
- Crim Law: #2 criminal defense atty in region, that you would see on national TV as talking head for local cases.
- Crim Pro: experienced sitting district court (most felonies) judge
- Civ Pro: experienced civil litigation attorney
- IP: retiring patent atty
- Patents: prominent Patent atty, prominent nationally (Harvard grad, moved there from NYC when his practice became national)

What the adjuncts provided was experience. They all had Great War stories, and, for me, that made a lot of the material much easier to really understand and remember. I still remember a lot of what the Crim Law prof said to us 30 years ago, including that of the dozens and dozens of capital cases, they invariably broke down as either bloody crimes of passion, or much cleaner crimes of premeditation. And that is why I doubt, to this day, that OJ killed his ex wife. The district court judge had seen it all in 20 years on the bench, spending over half his time there on felony cases. Every trick in the book. How does any academic hope to match his understanding of his field. And that was esp critical in those two IP classes. General consensus is that any law professor without a patent ticket is full of excrement if and when he tries to teach anything patent related. Like these other areas, the field looks very different to the practitioners, than it does the academics. Much of it is war against an out of control, very old, bureaucracy. You don’t do a lot of things because of the law, but rather what the USPTO is conveniently interpreting the law to be. Throw mega stakes litigation on top, where inequitable conduct is alleged in the boilerplate, and you learn to be very conservative. Academics don’t see this side very much. Practicing adjuncts do, and keep you from making the biggest mistakes with their war stories.

Besides, the war stories all those adjuncts had livened up the classes immensely. Everyone knows how boring the law is. How do you keep the class’ attention and interest? It is hard. And esp probably in recent years with SJW hiring and prioritizing research over teaching at many law schools.

MikeR said...

The stats aren't that hopeful. You can work outside of corporate law without being very good. To be a lawyer in a top law firm you need to be one of the very best.
So no, it may not be that easy to find lawyers from outside who are as good as the selection from inside.

Clark said...

If I had to cast the role of the serpent in the Garden of Eden I would have a tough time deciding between Durbin and Schumer.

n.n said...

Diversity or color judgment (e.g. racism, sexism, classism) is bigoted and breeds adversity.

n.n said...

Nonprofits and academia breed extraordinary myopia.

For-profit "nonprofits" are socially and politically leveraged corporations with lucrative returns.

Martin said...

No more NGO lawyers, either.

No law school professors, while we're at it.

Just give me someone who can handle a Nebraska real estate closing.

Yancey Ward said...

I decided a long time ago to read no more op-eds by Senate hired ass-kissers

Tina Trent said...

n.n. Indeed. I love it when professors making 200K teaching a 1/2 with every sixth semester a sabbatical talk about the sacrifices they've made to be teachers. Every state school has to publish higher ed salaries, and they're uniformly hilarious.

The word "nonprofit" would make a great subject for Politifact. If they included themselves. I research nonprofits in one of my jobs. You can look up the highest paid employees on the 990s of every registered nonprofit in the country on the Guidestar site for free.

It really is eye-opening how much people expect to be paid to dedicate their lives to selflessness.

tommyesq said...

Bruce Hayden, you have to elaborate on your OJ didn't kill belief, I don't see how the previous statement leads to it.

n.n said...

Many attorneys of color are in the same position...."

Why the diversity? One step forward, two steps backward. It should be: many attorneys are in the same position.

George Grady said...

May God save us from "brilliant legal minds".

Leora said...

Abraham Lincoln was a corporate lawyer. Though since he was a Republican, he's not the type the Democrats would approve.

readering said...

Seems like the two articles are talking past one another. The first writers are arguing against nominating law firm PARTNERS to the federal judiciary. The second article's author argues in favor of nominating former law firm NON-PARTNERS, such as herself, who worked at several law firms after getting out of law school, but leaving before the partnership decision came up. For example, of the three current members of the US Supreme Court, I believe only Roberts, Sotomayor and Kavanaugh were law firm partners, and Sotomayor was not at one of the "big" firms. And with their extensive government service, none of these were partners for long. (Roberts would have been a partner for less time had the Senate nor resisted his confirmation to the court of appeals under George W. Bush.) To me the bigger problem is the nomination of a disproportionate share of former prosecutors.

Zach said...

So maybe I missed it, but how is the author different from any other lawyer who went to a big law school and got a Big Law job to pay the bills?

... Instead, it was a matter of practicality. To have enough money to pay off my student loan debt, which totaled more than $100,000 after three years of legal education, and send money home to support family members, I needed the six-figure salary that my firm was offering. Big Law offered an opportunity to earn enough money to lift myself, and by extension my family, out of poverty and into the middle class....

Yeah, I get it. It makes sense.

Many attorneys of color are in the same position....

Oh, come on, why does "of color" have to be in that sentence? Do white lawyers go to law school for free? Do their families not want to be "lift[ed] out of poverty and into the [upper, let's be honest] middle class"?

Shorter version of this argument: "I'm not one of those greedy corporate lawyers. I did it for the money!

Zach said...

Like I say, I get where she's coming from. She wanted a well paying job, she got offered a well paying job, she took the job. It's the pissing on other people who made the exact same decision that grates on me.