Tom Williams/CQ Roll Call via AP Images
Sens. Menendez and Booker of New Jersey in the House Chamber before a joint session of Congress, February 28, 2017
Fixing the judiciary has been a top Biden administration priority. In just four years, President Trump jam-packed the federal bench with over 200 lifetime appointments, including 54 appellate judges, astonishing numbers for a one-term president that rival what Obama accomplished in two. The legacy of Trump’s presidency is assured based on those appointments alone.
As early as December 2020, a month before Biden was sworn in, incoming White House legal counsel Dana Remus made it clear to Senate Democrats that rebalancing the courts would be an urgent concern. Importantly, Remus encouraged the appointment of civil rights attorneys and public defenders with “legal experiences [that] have been historically underrepresented on the federal bench,” not simply the corporate hacks and BigLaw partners who had been favored in the Obama and Trump years. A commitment was made to diversity not just in race and gender but in professional experience, as well.
Nearly six months in, the results have been distinctly mixed. Some nominees have been advocates for the public interest like Margaret Strickland, the recently nominated lawyer who won a case against the Las Cruces (New Mexico) Police Department for excessive use of force, and was recommended by Democratic senators in New Mexico. The appeals court nominees in particular, six in total so far, have overwhelmingly hailed from public-defender backgrounds, and clearly evince that commitment to professional diversity.
But many other appointments, especially district court appointments in a handful of states, have fallen far short of that mandate. Colorado Sens. Michael Bennet and John Hickenlooper recommended a former BigLaw partner also nominated under Obama with their first recommendation. Other Democratic senators have also refused to put up candidates outside of the aegis of corporate law and federal prosecution as the Biden administration explicitly requested. So far, Biden has nominated those recommendations regardless. As Buzzfeed reported in April, that led to “two dozen public interest organizations [that] sent a letter to White House counsel Dana Remus expressing ‘concern’ that there weren’t any nominees ‘with genuine experience representing consumers and workers.’”
The state with perhaps the most defiant judicial recommendations has been New Jersey, which sported six vacancies on the U.S. District Court, four of which have now seen nominees by Biden, awaiting Senate confirmation. Those nominees have ranged from Obama-era retreads to worse.
The Biden administration specifically requested nominees with a diverse set of experiences in challenging entrenched power.
Cory Booker’s most recent recommendation, Karen Williams, whom Biden formally nominated in mid-May, spent the bulk of her career in private practice. Williams spent many years as a management-side labor and employment attorney, even arguing cases against workplace sexual harassment claims, a troubling background to those hoping for judicial appointments that might defend workers.
In 2002, Williams defended the city of Atlantic City in a sexual assault case, where a former city employee claimed to have been the victim of “gender discrimination, sexual harassment, and retaliation.” Three years later, Williams again defended Atlantic City in a case where a former city employee alleged the city had violated the Americans With Disabilities Act by not accommodating his epilepsy.
In 2006, Williams represented the Pavilion at Forrestal Nursing and Rehabilitation facility before the National Labor Relations Board, in a contentious union negotiation case where the judge found the facility Williams was defending to be “refusing to bargain in good faith with SEIU 1199 New Jersey Health Care Union when it canceled eight consecutive bargaining sessions” and “continued to act in bad faith by maintaining an intransigent position regarding the wage reopener negotiations.” That was only one of multiple management-side cases Williams’s firm Jasinski and Williams argued in front of the NLRB.
Incredibly, Williams is not the only management-side nominee recently put up by the New Jersey delegation. A few weeks prior to Williams’s nomination, Bob Menendez, the state’s senior senator, recommended Christine O’Hearn, a lawyer who he claimed had “spent much of her career advocating for women in the workplace and defending the rights of workers against employee discrimination, harassment and a hostile work environment.”
In reality, O’Hearn has fought against workplace sexual harassment cases, defended police departments, and represented management during union drives. In 2007, O’Hearn represented Gloucester County Institute of Technology against allegations brought by a student that her swim coach abused her from ages 13 to 19. In 2011, she defended Gloucester Township Schools against a suit brought on behalf of multiple African American schoolchildren who alleged pervasive and persistent racism of teachers and administrators, including claims that several teachers called students the n-word and “tar baby,” blocked them from extracurricular activities because of their race, unfairly gave them failing grades, and even called the plaintiffs’ mother the n-word when she reported the incidents of racism.
Senators in Biden’s own party are undermining one of his firmest commitments, and weakening his agenda.
Later, in 2012, O’Hearn defended the Borough of Pine Hill against allegations from an employee that she’d been sexually harassed by the mayor. And as recently as last year, O’Hearn represented the Vineland (New Jersey) Police Department in a case where a former police chief claimed to have been retaliated against for reporting unethical behavior. She also represented the Cooper Health System, a major New Jersey hospital, before the National Labor Relations Board, as an employer-side attorney as Cooper Health’s employees were trying to unionize.
Usually, defenders of the status quo step in here to say that lawyers do not necessarily share the views of their clients and shouldn’t be held culpable for them. But in this case, the Biden administration specifically requested nominees with a diverse set of experiences in challenging entrenched power. And choosing not one but two management-side labor lawyers with a history of working for union-busters and corrupt employers completely ignores that request.
While O’Hearn certainly doesn’t satisfy the professional diversity requirement, as a white woman she also doesn’t satisfy the Biden administration’s most basic, identity-driven diversity request. She did, however, max out with two $2,500 donations to Menendez in his 2012 Senate run. And because these judicial recommendations are made with the input of advisers, the list of whom Menendez has chosen not to make public, it’s hard to know how else he might have arrived at O’Hearn beyond those connections.
In response to questions, Sen. Menendez’s office referred the Prospect to his written statement upon the announcement of O’Hearn’s nomination, which states that “Ms. O’Hearn has spent much of her career advocating for women in the workplace and defending the rights of workers against employee discrimination, harassment and a hostile work environment. She is well-versed in labor and employment law, is smart, thorough, and detail oriented.” In a separate statement, Sen. Booker said, “Judge Williams has had a long and distinguished legal career defending the rights of workers and has a deep understanding of the issues facing the people of South Jersey.”
“These are the types of people we would have expected to see put forward by the Trump administration,” said Molly Coleman, executive director of the People’s Parity Project, a progressive judicial group. “Progressives have made clear what we expect of President Biden: judicial nominees who reflect the very best of the legal profession, not the worst. The fact that a full 10 percent of Biden’s first 20 nominees have worked as management-side attorneys is unacceptable.”
The open defiance of Menendez and Booker in New Jersey puts the Biden administration in an extremely difficult position. It would be shocking for Biden to openly rebuke or refuse the recommendations of the senators in states where these vacancies have arisen; it’s almost impossible to believe that Joe Biden, as a Senate traditionalist, would buck that norm. But accepting these substandard choices makes him look like he doesn’t actually have the courage of his convictions. “Attorneys like Christine O’Hearn, who have spent their careers fighting against workers, unions, and economic justice, have no place on the federal bench. If Sens. Booker and Menendez don’t see that, then it’s time for the Biden administration to stop accepting their recommendations,” Coleman said.
Absent that action, the result is that senators in Biden’s own party are undermining one of his firmest commitments, and weakening his agenda. His appeals court picks, made without the interference of senatorial recommendation, have remained largely true to the commitment to professional diversity. That’s not something all of his former contemporaries in the Senate seem to believe in. With only a handful of vacancies on offer, it’s essential that Biden make every one count, which will mean he’ll have to either confront the wayward senators refusing his direction, or cave to a handful of junior colleagues.
This story has been updated.
