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Circuit court judge nominees Nicole Berner, left, and Adeel Abdullah Mangi are sworn in at a hearing of the Senate Judiciary Committee, December 13, 2023, at the U.S. Capitol in Washington.
Historically, federal judges have tended overwhelmingly to be white, male, and from law practices that defend the rich and big business. To remedy this, President Biden has committed to diversifying the judicial bench, vowing to widen the pool of consideration and future nominations. As a result, the judicial bench is now more varied than ever, as Biden has nominated what has been called an “unprecedentedly diverse group of judges.”
Indeed, according to an Alliance for Justice report, Biden’s nominations have been 75 percent women and more than 60 percent people of color. But even with the administration’s commitment to diversifying the bench, professional diversity remains scarce. Judges typically come from private law firms, or from a past profession of litigating corporate issues, or having worked as a prosecutor. Rarely have nominations come from what Alliance for Justice calls the “economic justice” side of the legal system, or from civil rights lawyers, or public defenders.
Biden’s record on professional diversity has been marginally better than his predecessors’, as he has nominated more public defenders and civil rights lawyers than the norm. Ketanji Brown Jackson, whom Biden nominated and saw confirmed as the first Black woman Supreme Court justice, came from a public defender background. As Alliance for Justice noted, Jackson had been one of five public defenders appointed to the appeals circuit under Biden.
“This nearly doubled the number of former public defenders on the appeals courts, and marked the first Supreme Court Justice to have worked as a public defender,” the report stated. The report, “Economic Justice, Judges, and the Law,” found that while the bench has been diversifying, there is still a lack of judges with “economic justice” experience, which AFJ categorizes to include consumer protection and union-side labor law. Overall, the report found that just 6 percent of judges had economic justice experience, while more than 80 percent had experience representing corporations. In 2022, just 11 of 171 federal appellate judges had economic justice experience.
“Though the Biden administration has worked hard to diversify the bench, these numbers have changed little since 2022,” Jake Faleschini, program director for AFJ, told the Prospect.
Diversifying the judicial bench is not a task entirely in the purview of the administration. In 2020, incoming White House counsel Dana Remus wrote a letter to senators reiterating the incoming Biden administration’s commitment to the effort of diversifying the bench, and requesting that the administration be sent diverse nominations to consider.
But even with Remus’s urging and the Biden administration’s commitment, senators have no obligation to suggest diverse judges. Republican senators have been particularly reluctant to do so, but as consumer advocate Ira Rheingold told the Prospect, often, “even the Democratic nominee came from big law firms who typically represented big financial institutions.” Rheingold also noted how the process of “blue-slipping” means that suggested diverse nominees can still go unappointed if they are held up by GOP senators from the nominees’ state. And the GOP has other ways of sabotaging diverse judges.
For example, last year, Biden nominated Nicole Berner, the labor lawyer who was general counsel for the SEIU, to the Fourth Circuit of Appeals. As The Washington Post reported, in an initial hearing with the Senate Judiciary Committee, Sen. Tom Cotton (R-AR) and other GOP senators picked apart Berner’s past comments regarding the “right to work” movement, an anti-union movement that Berner had called “deeply racist.” Berner has yet to be confirmed.
Regulatory protections for consumers and workers are facing a concerted assault by business interests and the Trumpian right.
This shortage of judges with a background in worker and consumer defense compounds the plight of ordinary Americans already worsened by the general weakness of government regulation. Previously, the Prospect reported on a class action lawsuit filed against Dollar General for an alleged pricing scam. The article also detailed how the business practices of discount retailers can be used to short the consumer, and ended on a rather glum note: There is pretty much nothing that can be done. With antitrust regulation still only selectively enforced, consumers are left to fend for themselves, often relying on the discernment of a judge who may not see the consumer’s perspective.
The Consumer Financial Protection Bureau (CFPB), the agency that is, as the Center for American Progress puts it, the “only federal agency whose sole mission is to protect consumers from unfair and abusive practices by banks and nonbank financial actors,” has been weakened through multiple lawsuits that have chipped away at the agency’s power. While the CFPB is still considered one of the most effective agencies, the constant barrage of lawsuits questioning the agency’s legitimacy has hindered its ability to enforce consumer protection on a large scale.
Other agencies that deal with consumer protection and antitrust enforcement, such as the Federal Trade Commission, have mostly dealt with large-scale antitrust issues, leaving the individual consumer grasping for economic recourse when a billion-dollar operation steals from them. That leaves class action lawsuits and other individual suits as some of the last avenues of recourse for consumers scammed by large and prominent retailers.
Regulatory protections for consumers and workers are facing a concerted assault by business interests and the Trumpian right. That assault could win a significant victory when the Supreme Court rules later this year on whether to limit or overturn the 1984 decision Chevron v. Natural Resources Defense Council, which could strike down the rule-setting authority of federal regulatory agencies.
“If the court overturns or sharply limits the Chevron precedent, it would become easier for business owners to challenge regulations across the economy. Those include rules aimed at ensuring that the air and water are clean; that food, drugs, cars and consumer products are safe; and that financial firms do not take on too much risk,” The New York Times wrote.
Consumers are not without advocates, of course, though there still are few judges with a background in consumer-side law. The National Association of Consumer Advocates (NACA) provides resources for consumer advocates and a pathway to connect to consumer-oriented law practices. The organization, as Rheingold, its director, told the Prospect, works “on legislation, on policy, [and] regulatory advocacy.”
For Rheingold, though, the real challenge is the lack of consumer advocates appointed to the bench, as well as the financial limitations to consumer-side law practice. But NACA’s mission is clear. “Our job is to grow the field of attorneys who actually do this kind of work, and teach them [that] they can make a living, and do well, and still be on the right side of the law. The right side of humanity,” Rheingold said.
