For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.
“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but ... the president’s nominees have thus far been largely in line with the prior statistics.”
Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.
If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.
At last, the times are catching up with Warren.
President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.
“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 ... Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”
Progressive judicial advocacy groups are making a strong push on the need for professional diversity in Biden’s court picks. Last week, 30 progressive organizations wrote to Democratic senators urging them to publicly commit to recommending public defenders, civil rights lawyers and public interest lawyers to Biden when judicial vacancies occur in their states.
They know that Warren is, and has been, their biggest ally on this front.
“Sen. Warren has long understood the need to change the fact that our courts are stacked with former prosecutors and corporate lawyers,” said Chris Kang, chief counsel of Demand Justice, one of the groups on the letter. “We look forward to fighting alongside her to rebalance a court system too biased in favor of the rich and powerful.”
Warren was hurrying to a meeting on Tuesday when HuffPost caught up with her in a Senate hallway. Despite her aide’s best efforts to keep the senator on schedule, Warren stopped in her tracks when asked if she still considers the need for professional diversity on the federal bench a top priority ― “Oh, yes” ― and said she’s doing everything she can to put it on her colleagues’ radars as they think about confirming judges.
“I talk with other senators about this. I have raised this with White House staff and I will continue to do so,” Warren said. “We need to think of ‘diversity’ in the fullest meaning of the word.”
Senators play a huge role in who a president nominates to be an appeals court judge or district court judge. The White House typically waits for senators to recommend people to the president for empty court seats in their home states, and then moves forward with vetting those prospective nominees and making a final decision on who to nominate.
“We need to think of "diversity" in the fullest meaning of the word.”
Asked if any of her colleagues seem ready to make this a greater focus in the kinds of people they recommend to Biden for federal judgeships, Warren said right now it’s matter of encouraging them to reframe the way they think about diversity.
“I think some people never thought of it that way,” she said, referring to the idea that a person’s professional background is an aspect of diversity. “I think they’ve channeled their thinking along certain lines, and also where they look for federal judges. So, it’s been big firms and prosecutors.”
At least one other senator is on board with making this a higher priority. Sen. Ed Markey (D-Mass.) tweeted last week that he agrees with Biden “that we must appoint to the federal bench a diverse array of individuals whose life and legal experiences have historically been underrepresented.”
What senators can do right now, Warren said, is make it clear to legal professionals in their states that they are open to recommending people to the White House who are not traditionally chosen to be federal judges. As of Friday, Biden needs to fill 61 district court vacancies and seven appeals court vacancies all over the country.
“People like labor lawyers and consumer lawyers and small-firm lawyers ― all of those require letting them know they should apply,” Warren said. “Letting them know that if they came forward, that senators would be interested.”