Ending the BigLaw Racket: A Conversation With Brian Fallon

Dana Verkouteren/AP Photo

Civil rights lawyer Debo Adegbile speaks in front of the Supreme Court in 2009. Five years later, President Obama put forward Adegbile as a DOJ nominee but then withdrew the nomination amid controversy. 

In a provocative essay for The Atlantic, Brian Fallon and Christopher Kang, the co-founders of the new court-focused group Demand Justice, put out a declaration that the next Democratic president should not nominate federal judges who spent time at corporate law firms. The audacity of the proposal is even more striking given who it was coming from. Kang was the leading White House lawyer for judicial nominations during the Obama presidency; Fallon served as a spokesman for Chuck Schumer in the Senate for six years, and then in the Justice Department under Eric Holder, and as national press secretary for Hillary Clinton’s 2016 campaign.

These are not résumé items you would typically associate with people who want to burn down the dominant frameworks for judicial nominations. But Fallon and Kang capture the problem with the status quo: A BigLaw pedigree serving corporate clients is an entryway into an elite club that can advance careers, while lawyers at public defender’s offices or advocacy groups get left behind. This tilts the federal bench in favor of corporate interests, which has been a major trend in the courts over the past few decades. Republicans put up ideologues for judgeships, while Democrats take corporate lawyers, and this imbalance must stop, Fallon and Kang argue.

I talked with Fallon on Friday about the proposal, how judicial nominations work among Democrats, and why diversity needs to be about life experience and professional status as well as race and gender. A lightly edited transcript follows.

David Dayen: This declaration feels like you exposed a secret that a lot of people knew about but weren’t telling. So why do it now, so far out from the presidential election?

Brian Fallon: The problem that we’re specifically seeking to address is important for its own sake, and that’s the lack of diversity on the court. The courts in general are an issue that only a select group of people pay attention to. Among that group, there’s a widespread recognition of the lack of professional diversity. But when you express a general desire to change this, people nod their head, politicians say yes, and nothing changes. And then political networks of big donors call up politicians and put in a good word for corporate donors. We felt the need to get a little bit more intense about it, and put it in starker terms. If you want to put the onus on people to look at different types of nominees, you need to put firmer point on it. You need to say, we should rule out corporate lawyers for the next presidential term. It’s a purposeful mission to elevate other types of people, like public defenders or academics or lawyers from advocacy groups like the ACLU.

This is going to be a provocative and controversial idea, so we need to start socializing the concept now, and we need to rally progressive activists to think about caring about this now, so when a Democratic president puts forward names in February, March, April of 2021, they need to know that people are watching what type of nominee they pick.

Our overall mission is not to get any one person nominated. It’s to get judicial issues more into the marrow of Democratic activists. People must center the courts as a needed element of the movement’s activities and goals. One faction of the base that’s been absent from the issue space has been the economic progressives. The courts have been contested around reproductive rights, and more recently around democracy issues, like campaign finance and voting rights. What’s gone unnoticed is this raft of rulings, like cases on the Federal Arbitration Act, the impact of the Janus ruling and previous ones that set that up. So if you are a Bernie Sanders or Elizabeth Warren Democrat, and you believe the campaign finance system hijacked, if you believe antitrust and economic concentration is a big problem, you should care about judicial nominations, because the courts are a theater where this war is being contested and there’s no one on the battlefield. It’s a place to advance the interests as well. If this leads to one AOC equivalent of a federal judge, like a young labor lawyer, or an academic like Tim Wu who has written interesting stuff about corporate power, if you get them on the bench and write opinions, I mean, I would love all the people at the Open Markets Institute [the leading organization fighting economic concentration], the people who are working on primaries of centrist Democrats, I would love them to think, let’s put our shoulders behind this.

It’s interesting how you use the word “diversity.” I think often that gets put into a certain context, but you’re talking about diversity of experience and professional development, just with a broader lens than the way it normally gets discussed.

I would say that in the Obama era, there was a decided effort mounted to increase the ranks of judges from the standpoint of racial and gender diversity. That was very necessary, from the standpoint of LGBT individuals, for the woman/man split on the bench. That was a crucial project. And that has been set back by Trump’s predominantly white and male picks. I think the next president—it should be a given that we’re going to look for racially diverse people. That should be a floor. When Sotomayor was nominated, she had a background as a corporate litigator. That was a compromise worth making. And it worked out. The next time, we can be more picky.

So what are the goals of this kind of blanket prohibition on corporate lawyers for the federal bench?

The first goal is to change the types of judges on the bench. The second goal is to increase the muscle memory of the left. If we’re against having Wall Street bankers in high-ranking roles in the administration, if we’re against people doing high-dollar fundraisers in the living rooms of corporate executives, let’s add to the list the people who represent them in a legal context being the preferred picks for judges. The third goal, there are young progressives right now going to law school having this existential debate within themselves, wondering how can I contribute to opposing Trump’s vision of America. This idealistic sense, they want to get involved to stand up against what Trump represents. And a position at a corporate law firm is very lucrative, and it’s a very safe, politically viable place to make your career, if you want to be relevant to making a difference in future. It puts you in close proximity to movers and shakers, people who can further your career. People serving at the ACLU, or as a public defender, they won’t be in that close proximity, they won’t have people to weigh in on their behalf. And if you’re at the ACLU, you might be viewed as a net negative, because Republicans will get their backs up if we nominate this guy. We need to start changing the incentives. If we make it disadvantageous to be just another Yale Law grad working at [corporate law firm] Paul, Weiss, and make advantageous the Tiffany Caban version of a judicial candidate, suddenly young people don’t have to choose between their vision and their career.

Republicans nominate movement conservatives who work their entire careers on long-term pet projects all the time. They don’t just ask conservatives to be anti-Roe, they get the ones who work the cases at litigation factories in the south. They got Stuart Duncan onto the 5th circuit; he argued the Hobby Lobby case. We don’t have to shy away from our champions, our advocates, in favor of corporate lawyers.

When you worked in the Senate, when a nominee came up with a BigLaw pedigree, what did that signify to Senators?

That they’re not an ideologue. It was seen as a neutral credential. If anything, [it was] viewed as a neutral credential, never a net negative. It wouldn’t signify that the nominee is too close to corporate interests. It might be seen as positive, that this is not a liberal ideologue. Consider the context: Who are some of the most controversial nominees on the Democratic side in the last few years? Debo Adegbile, he was put up to run the civil rights division of the Justice Department, and he even had [Senator] Chris Coons oppose him, because as a pro bono lawyer he worked for Mumia Abu-Jamal in Philadelphia. That was so controversial in the media market that Coons had to take a walk. On the left, there’s this is the whole principle since John Adams that you separate the lawyer from the client, but the pressure on the right was so intense, this is a cop killer defender. And then you had Goodwin Liu: He was seen as too liberal and had to withdraw. So if you put up a corporate lawyer, it’s considered that Republicans can’t resist, because they’re supported by the Chamber of Commerce or whatever. So Sri Srinivasan, is quote-unquote “respected” on both sides of the aisle, because he made a career out of representing corporate clients. And in fact without our statement, he would be on the Democratic short list for the next Supreme Court vacancy.

It seems like BigLaw’s influence within Washington goes beyond the judiciary, and into Congress, and the executive branch? I mean there’s one law firm, Arnold & Porter, that puts practically everyone onto the key antitrust agencies through the revolving door. It’s a broader problem, right?

Yes. I have gotten some comments, you think all corporate lawyers are compromised and can’t be progressive judges. I’m not saying that. I’m saying that when you reside in certain political and social circles, you let your guard down on certain things. As an example, you see good progressives lending their names to people they know will be awful on the bench. Why? Because they went to school with them, or were partners at the same law firm. It’s the ultimate elitist move. These people want a judiciary that’s fair and respectful, but they’re willing to suspend that to vouch for their buddy, because they carpool together to an upper Northwest Washington school that kids both attend. If you’re elevating a public defender, that day-to-day life is not influenced in that way. There’s real value in that, from both sides. There’s value in guaranteeing that we have that vantage point represented. And there’s value in de-emphasizing more of the same backscratching network, the network that joins each other on briefs at corporate clients, and get talked up as the crème de la crème among the legal community.

You’re in this interesting position, given who you’ve worked for and where you are now. Do you see a transformation in your thinking about these issues?

I worked in the Senate for six years, and when I worked there, judicial nominations were an unsexy topic. If I was sitting in a meeting about what we’re doing this week, and I heard that we’re doing three judicial nominations, I would just tune out, because nothing in this meeting was worth paying attention to. The crisis in the judiciary is acute now. The complacency on our side, and I’m guilty of it as well, is not acceptable. I may be coming to it a little sooner than others. But I think a lot of people will have this epiphany. Unfortunately, the real world will get worse, which will make my job easier. The Republicans have five votes on all these issues. They have a very good infrastructure, built to inundate the federal judiciary with test cases, get them up to the Supreme Court on quick timelines, and vindicate long-held priorities. This term, there will definitely be a ruling on the impact of the Civil Rights Act on LGBT individuals. We’re not in a good position to win based on the composition of the court. I would expect an adverse DACA ruling. There’s the ACA case from Texas. The smart money is that Roberts upheld Obamacare twice and won’t break this time. But think of the insanity that we’re still dealing with this years later based on fringe theories. The Louisiana abortion law may be decided this term on the merits.

And beyond all of that stuff, there will surely be all these corporate cases where the Court will side with the pro-corporate side, and some of those might be 7-2 or 8-1. That’s the whole point, right, that the Court is really tilted on the corporate side?

That’s going to remain true. The differentiating factor is there will be things that will grab headlines. I don’t think I’ll be a voice in the wilderness anymore. There will be an understanding after the DACA ruling that DREAMers can’t just be immigration advocates, but court reform advocates. The Sunrise Movement kids might not just be climate activists, they need to become court reform activists. So we want to get judicial politics infused into the bloodstream of activists that are powerful on their issues. The courts as seen as a rival issue in polls. Sometimes you’ll see internal polling on what voters are interested in, which will put the courts in with health care and immigration, as if it’s its own issue. The courts are not a rival issue to any of those; it is all those issues. The courts have been for a long time the province of the elite, and the elite like it that way. They like to think of themselves as brain surgeons, and only other brain surgeons can read their opinions. They think of themselves as above politics, having these arguments that nobody below them can comprehend. My point to these people is fuck that. Let’s break through the fourth wall.

Republicans have broken through that wall. They’re now getting candidates to put out lists of who they’re going to pick for judicial nominations. And our side is saying is: you can’t politicize the courts. There’s an interest in keeping the universe of people working on the courts very closed off. It’s better off for them if the Sunrise Movement doesn’t mention the courts. It’s better if Justice Democrats, who are doing all this work on the Henry Cuellar race and others, doesn’t pay attention to who Amy Klobuchar is recommending for an open seat on the 8th Circuit.

You teased on Twitter that you’re going to go into the selection committees used to vet judicial nominees for senators who have a say in who gets nominated in their states. Could you explain that to me?

Institutionally, one of the ways the system works is that most of these Senators themselves—some of them know personally people that they want to put on the bench. That starts to run out fast. After that, if they’re in the position to nominate someone, they’re reliant on recommendations from people in the local bar who tell them this is a good young person. Some offices have taken that process to a formal level. There’s an actual selection committee. There’s no rule that they have to do this that way. In Pennsylvania, they have a bipartisan nominating commission. So between [Senators Bob] Casey and [Pat] Toomey, one gets one pick, and next time, it will be known that the other senator gets the pick. And there’s a bipartisan committee that puts in names. In other states, the senior senator will have precedence, and they will have this committee doing the vetting. So if you’re angling for a nomination, you have to talk to this group of people that’s never publicized anywhere.

My thought was, let’s get enough people talking about this who are aware of the process to create a database. Or you ask the senators that are willing to tell you who they’re talking to. That can shame the ones not talking to you, but even if the senators do publicize it, they’re telling on themselves about the lack of professional diversity. They might think it’s a diverse committee because it’s bipartisan, but they’re all corporate lawyers.

Wow, I never knew about any of that.

In the last three days I’ve had non-corporate lawyer types reach out to me on LinkedIn, saying, “I’ve been wanting to be considered for a federal judgeship and I didn’t know who to raise my hand for. Are you going to put a database together?” So it can be really powerful.

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