At Wednesday’s Senate Judiciary Committee hearing, Republican Senator Jeff Sessions provided a model lesson in why there is so little professional diversity among our federal judges. Turning to District of Maryland nominee Paula Xinis, Sessions unleashed a line of accusatory questions suggesting that Xinis’ career as a public defender and civil rights lawyer showed an “agenda” that she would invariably “bring to the bench.” The questions were absurd and unfounded, but they could not be dismissed as such. Instead, Xinis had to patiently explain that protecting the rights of America’s most vulnerable and disenfranchised had not left her tainted with disqualifying bias.
Unfortunately, such questions are not unusual, and Jeff Sessions is not alone in asking them—rather,
they illustrate a systemic problem with the current process of judicial selection and the deeply entrenched presumptions attached to certain legal careers.
Public defenders and civil rights lawyers (as well as plaintiffs’ lawyers generally) are dramatically underrepresented among federal judges. Just 14 percent of President Obama’s judicial nominees have been public defenders, while about 41 percent have been prosecutors. Likewise, only 3.2 percent of nominees have worked as civil rights lawyers, while 72 percent have been corporate attorneys. Xinis’ nomination reflects continued improvement—already in 2015 the president has nominated four public defenders (out of 12 total nominations), and Rhode Island’s senators recently recommended a potential fifth public defender for nomination—yet the wide disparity remains.
Beyond specific categories of law practice, these numbers reveal a broader truth: our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. Only a small minority of judges have experience representing indigent defendants or other low-income clients, the very people who depend most on our courts to provide equal justice.
In part, this is due to the mistaken but rarely questioned notion that lawyering to preserve influence and privilege—to cement rather than challenge the status quo through legal practice—is somehow impartial and cannot possibly come to bear in judicial decisionmaking. In a recent panel discussion led by Alliance for Justice, D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.”
This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. Sessions felt compelled to verify that someone with Xinis’ professional background—which also includes time as a complaint examiner in D.C.’s Office of Police Complaints—would not be biased against police officers. After asking whether “police have a responsibility to try to maintain an orderly and safe environment for the people who live in a city,” and whether a judge “should show empathy for the difficulties that police officers face as well as” for those who allege that police have violated their civil rights, Sessions closed with this:
Can you assure the police officers in Baltimore and all over Maryland that might be brought before your court that they’ll get a fair day in court, and that your history would not impact your decisionmaking? And I raise that particularly because I see your firm is representing Mr. Freddie Gray in that case that’s gathered so much attention in Maryland, and there’s lots of law enforcement officers throughout the state and they want to know that they don’t have someone who has an agenda to bring to the bench—can you assure them that you won’t bring that to the bench?
The implication is clear: if you defend people against criminal prosecutions, and especially if you represent people in civil rights cases against police, there is a presumption of bias that you must rebut before the Judiciary Committee. One wonders whether Sessions has asked a prosecutor if she would bring to her judicial role an “agenda” against indigent criminal defendants. Or if a corporate defense lawyer would be biased against employees who allege unlawful discrimination or unpaid wages. I doubt very much that he has.
The depth of this double-standard is underscored by Sessions’ invoking Freddie Gray in particular. Gray, of course, was fatally injured in Baltimore police custody after being arrested without cause. His death led to grand jury indictments for six officers on homicide and assault charges, and the Department of Justice opened a civil rights investigation. Under these circumstances, representing Gray’s family hardly seems like an act of radical subversion that would call into question one’s ability to fairly and impartially apply the law. But in Sessions’ view, any challenge to police authority, even in a case as egregious as Freddie Gray’s, can be done only in pursuit of some extra-legal “agenda.”
Professional diversity in the judiciary matters. Judge Pillard called it “a deficit in our courts” that “we haven’t had [judges] who’ve represented less well-to-do, less institutionally-established clients[.]” And the point isn’t that one kind of lawyer is neutral and impartial while another kind of lawyer is not. Nor is it that corporate lawyers are necessarily bad judges and public defenders are necessarily good. It’s that all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular, and this week’s hearing reminds us of how hard that is to achieve.
But this much is clear: the problem is much bigger than Senator Sessions, and solving it requires everyone involved in judicial selection and who cares about the courts to talk openly about and promote the value of professional diversity.