David Zalubowski/AP Photo
Sen. Michael Bennet (D-CO) speaks at a rally for Doug Emhoff, husband of then–vice presidential candidate Kamala Harris, October 8, 2020, in Denver.
One of the first priorities of the Biden administration, articulated weeks before his swearing-in, was nominating judges. In a December letter to Senate Democrats, incoming White House counsel Dana Remus indicated that Biden would be moving swiftly on judgeships for circuit and district courts, and that he wanted recommendations, not for the usual corporate lawyers that overwhelm the federal bench, but public defenders and civil rights attorneys.
“With respect to U.S. District Court positions, we are 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,” Remus’s letter read. It’s a profound departure from administrations past. Even Biden’s Democratic predecessor Barack Obama leaned heavily on BigLaw and corporate lawyers to staff the too-few judgeships he saw confirmed. Progressives have been clamoring for more diversity of experience on the federal bench for years. Elevating judges with a commitment to the public interest represents the only real possibility Democrats have to offset the impact of Trump’s judicial-appointment spree, where he elevated an astonishing number of corporate toadies, overzealous prosecutors, and underqualified partisan ideologues.
Typically, senators recommend to the president potential judicial nominees for their states or regions; that was the point of the Dana Remus letter, to notify senators to diversify their choices. Just a few weeks into the administration, that recommendation process has begun, but not with a bang. Michael Bennet, Democratic senator from Colorado, has submitted to Joe Biden, along with the state’s junior senator John Hickenlooper, his first federal district court bench recommendation: Regina Rodriguez, a partner at corporate law firm WilmerHale.
Rodriguez is a Latina, but beyond that she represents the opposite of what Biden was asking for. She sports a lengthy track record of high-powered corporate defense work, including defending McDonald’s in a racial-discrimination lawsuit in 2006 and defending the office of former Republican senator Ben Nighthorse Campbell in an age discrimination suit the year prior.
More troubling than that was her work for Big Pharma. Rodriguez worked on behalf of Dianon Systems against a case by a patient alleging the company mislabeled a biopsy result, which caused him to undergo an unnecessary prostate removal. She then defended drug giant Eli Lilly in a case where patients alleged to have suffered withdrawal symptoms after discontinuing their use of the antidepressant Cymbalta, and that the company’s promotional campaigns for the drug were misleading. She represented dietary-supplement company Musclepharm in a class action suit alleging the company misled consumers about the efficacy of its products, and repped Bristol Myers Squibb in a case alleging that they’d failed to disclose compulsive gambling as a side effect of their antipsychotic drug Abilify.
That’s to say nothing of WilmerHale’s reputation broadly, which has come under routine public scrutiny in the past. The BigLaw firm has represented corporate titans like PepsiCo and even defended former senator Bill Frist in his high-profile insider-trading scandal, which necessitated stronger regulations on members of Congress trading stocks.
Needless to say, Rodriguez does not align with Biden’s call for lawyers from diverse, non-corporate backgrounds; she’s exactly the sort of appointee that would be expected in a bygone era. In fact, she was nominated for a federal judgeship in 2016 by Barack Obama after being put up by Bennet and then–GOP senator Cory Gardner. Her confirmation, like many others, was stalled out by Mitch McConnell in the Senate. But that was long before four years of Trump appointments, and under a president with a set of priorities on judicial appointments that the current president has vocally distanced himself from. Why, then, is Michael Bennet subverting Joe Biden’s agenda when it comes to correcting the courts from their Trumpian lunge?
Part of that is explained by who’s giving Sen. Bennet advice. Like many senators, Bennet relies on a commission made up of private lawyers to offer up recommendations from his region for the federal bench, which he then passes up the chain. Bennet’s advisory group is staffed overwhelmingly by corporate lawyers and prosecutors, who make up 72 percent of the commission, the most of any Democratic senator who actually manages to disclose their group’s members.
That influence is reflected not only in Bennet’s head-scratcher nomination; it led him to vote in support of Trump’s judicial nominees at alarmingly high rates. Bennet voted for over 50 Trump judges whom other Democrats opposed, which helped Republicans pack the courts so thoroughly that it’s unlikely even a motivated Biden administration will be able to undo all of the damage. All that led to Demand Justice, a progressive group focused on the courts, giving Bennet an F rating in its 2017–2018 scorecard.
Bennet’s advisory group is staffed overwhelmingly by corporate lawyers and prosecutors, who make up 72 percent of the commission.
Now, with concerns over Bennet’s continued fealty to BigLaw mounting, Demand Justice is up with a TV ad in Bennet’s home state of Colorado slamming him on that record. The ad, viewable here, pressures Bennet to fall in line with the Biden agenda on judicial recommendations. “President Biden’s priority is the right one: balancing out the overwhelming pro-corporate bias in our courts by appointing a diverse group of public defenders, civil rights lawyers, and labor lawyers to be judges,” said Demand Justice chief counsel Christopher Kang in an email. “Bennet’s recommendation of a corporate lawyer flies in the face of President Biden’s vision, and it represents the outdated approach that has led to a court system so tilted in favor of the rich and powerful.”
Traditionally, home-state senators play a big role in recommending judges in their area when vacancies come up. But Bennet’s unwillingness to abide by Biden’s marching orders on judicial appointments puts the White House in a tough spot. The president will either have to override the local delegation’s recommendation, or be strong-armed into abandoning one of his top commitments.
The battle of the courts remains one of the most important ones for the condition of democratic governance and the Democratic agenda. In a recently published report from the Center for American Progress, research found that “the federal appellate bench is swamped with those who spent the majority of their careers in private practice or as federal prosecutors,” but remains almost entirely devoid of public defenders or civil rights lawyers. That’s a huge deficiency that Biden has only limited ability to change. There are currently only 61 federal court vacancies, out of 890 positions, a little less than 7 percent.
While most Democrats remain squeamish about court-packing as a project, it is imperative that they get the few judicial appointments that are currently fillable right. Bennet, and the party’s senatorial centrists, are off to a troubling start.
