Tom Williams/CQ Roll Call via AP Images
Judge J. Michelle Childs, nominee to the U.S. Court of Appeals for the District of Columbia Circuit, testifies during her Senate Judiciary Committee confirmation hearing, April 27, 2022.
American labor is having a moment. Corporate profits soared throughout the pandemic, and workers are demanding that they, not just the bosses, benefit. Public support for unions is higher than it has been at any point since the 1960s. Unionizing your Starbucks looks like the hottest trend of the summer. Chris Smalls and Derrick Palmer are hanging out with Zendaya. And, according to Joe Biden, we have the most pro-union president in American history sitting in the White House.
Unfortunately, when it comes to judges, Biden seems to have missed his own memo.
Over the last two years, Biden has named 98 federal judicial nominees. The nominees have collectively won widespread praise, making history for their demographic and professional diversity. But even as the White House is setting records for the number of public defenders appointed to the bench, it is also on track to make an anti-worker federal judiciary even more overtly hostile to working people.
In April 2021, Judge Marsha Berzon, one of the few former union attorneys on the federal bench, took senior status on the Ninth Circuit; in December of the same year, Jennifer Sung, a union attorney and former SEIU organizer, was confirmed to the same court. A net zero change in the number of union lawyers on the bench would hardly be worthy of praise for an administration that regularly proclaims its support of unions. But a deeper dive into the record shows that the overall picture is even worse.
D.C. Circuit judges have more impact on the lives of working people in this country than nearly any other judges on the bench.
While there have been a handful of judicial nominees with pro-worker experience (like Charlotte Sweeney in Colorado, Holly Thomas in California, and Rachel Bloomekatz in Ohio), the number of anti-worker nominees has now reached double digits. Christine O’Hearn, now district court judge in New Jersey, has a long record of defending employers against claims of harassment and discrimination. Andre Mathis, currently awaiting confirmation to the Sixth Circuit, has spent his career as a management-side attorney. And the list goes on.
Perhaps nowhere is this comfort with anti-worker judges more apparent than on the D.C. Circuit, often considered to be the second-most important court in the country.
Thus far, President Biden has had three opportunities to fill vacancies on the D.C. Circuit, and he has used two of them to nominate judges with anti-worker records or backgrounds.
Judge J. Michelle Childs, a finalist for the open Supreme Court slot who was nominated to fill Judge David Tatel’s seat on the D.C. Circuit, spent a good chunk of her career at Nexsen Pruet, a firm proud of its “litigation skills to aggressively pursue any matter through trial when it is in the best interests of the employers we represent.” In her eight years at the firm, Judge Childs represented employers being sued for race and gender discrimination and sexual harassment in the workplace. Of the 23 known employment discrimination cases she worked on at Nexsen, 23 were cases in which Judge Childs represented employers accused of violating workers’ rights.
The confirmation of Judge Ketanji Brown Jackson to the Supreme Court opened yet another vacancy on the D.C. Circuit, which President Biden used to recently nominate Judge Florence Pan. Like Judge Childs, Judge Pan does not have a great record on workers’ rights issues. In Holbrook v. District of Columbia, she ruled against whistleblowing correctional employees who were fired after refusing to comply with unlawful orders to target two employees who had made complaints about sexual orientation discrimination with extra supervisory scrutiny and disciplinary action. Judge Pan held that instructions down the chain of command on how to treat employee work requests cannot be illegal orders—a ruling that was subsequently reversed.
In Washington Teachers’ Union v. DCPS, Judge Pan permanently stayed arbitration sought after by the teachers union. The case concerned multiple teachers’ evaluations and subsequent disciplinary actions taken, violations of the evaluation process, and due process violation allegations.
A Democratic White House putting anti-worker judges on any court in the country is cause for immense alarm, but putting anti-worker judges on the D.C. Circuit has the potential to be catastrophic. Like every circuit court, the D.C. Circuit hears cases arising out of its geographic jurisdiction. Unlike every circuit court, the D.C. Circuit has unique and exclusive authority to review cases on administrative actions, and is often ultimately responsible for deciding on the legality of the federal government’s actions impacting workers. Any action at all taken by the National Labor Relations Board or the Department of Labor can be appealed to the D.C. Circuit. Accordingly, D.C. Circuit judges have more impact on the lives of working people in this country than nearly any other judges on the bench.
Earlier this month, in Chambers v. District of Columbia, the D.C. Circuit ruled that an employee need not show an “objectively tangible harm” in order to prove that they have been the victim of illegal workplace discrimination. Workers who are transferred internally as a result of their employer’s discriminatory intent—even if they don’t suffer a pay cut or other material harm—now have a chance to seek remedy. This opens a path for countless workers, increasing the possibility of justice for those who have been wronged at work.
Last fall, in Local 23, American Federation of Musicians v. NLRB, the D.C. Circuit threw out a Trump-era test from the National Labor Relations Board that had limited the ability of a contractor’s employees to picket on property where they worked. Trump’s NLRB had determined that only those employees who work “regularly and consistently” at one job site had the authority to picket on that property; in a win for workers, the D.C. Circuit held that this arbitrarily excluded some workers and was thus impermissible.
While the D.C. Circuit can be an important site of protection for the rights of working people, the converse is equally true. NLRB general counsel Jennifer Abruzzo has made clear that she intends to use the office to reinvigorate labor rights, regardless of whether Congress does the same. This will most certainly result in a bevy of cases being heard by the judges on the D.C. Circuit, in which over a quarter of the judges will soon have been appointed by Biden. The outcome of his own administration’s fight on behalf of workers may very well turn on the judges he selected, and based on the record of nominations thus far, that future hardly looks promising.
It’s not too late to turn this around. Last week, Judge Judith Rogers of the D.C. Circuit announced that she was taking senior status—creating yet another opportunity for President Biden to name someone to the second-highest court. It is imperative that the president quickly seize this opportunity to nominate a pro-worker, pro–economic justice attorney to this seat. It’s equally critical for progressives and unions to make this a top priority and to continue making clear that anti-worker nominees are unacceptable.
With a domestic legislative agenda that sits lifeless in Congress, especially as it relates to labor, President Biden owes it to workers across this country to make a meaningful and positive impact when and where he can. He can do that with judicial nominations. And with midterms fast approaching that leave the balance of Congress in question, the president must maximize the time he has now to nominate the types of attorneys his office promised to prioritize: “individuals whose legal experiences have been historically underrepresented on the federal bench.”
The federal courts are oversaturated with pro-corporate lawyers, while workers’ rights attorneys have been too long overlooked when it comes to being nominated to serve. The bench of these fierce advocates is deep and should be looked to to not only fill this new vacancy on the D.C. Circuit, but to also fill the many others that remain open.
