Elizabeth Warren decries lack of professional diversity on federal courts

From Think Progress/ Justice By Nicole Flatow on Jun 18, 2013 at 1:30 pm

Sen. Elizabeth Warren (D-MA) brought renewed attention to the critical battle over nominees to the federal courts Thursday evening, in remarks that blasted the “corporate capture” of the federal courts, and called on those concerned with the political system to care as much about the make-up of the courts as of the legislature.

Observing courts’ increasing tendency to side with corporate interests and narrow individuals’ access to justice, Warren flagged a glaring skew in the professional experience of federal judges, the vast majority of whom have experience either as corporate attorneys or prosecutors. Warren lamented that only three percent of federal appeals court judges have substantial legal experience working for a nonprofit organization, and a similar percentage have worked in some capacity to enforce civil rights, according to an American Constitution Society report. And while President Obama has been responsible for some of the most notable exceptions to this trend, recent accounts show that the federal courts continue to be dominated by the same sorts of professional backgrounds.

She pointed to Judge Edward Chen, a rare judge with recent experience working at an organization that enforces civil rights. She explains:

At his induction ceremony, Judge Chen was quoted as saying that he never considered withdrawing his name from consideration because, as he explained, “I believe that someone should not be disqualified from the bench simply because they once represented the voiceless and unpopular, rather than the wealthy and the powerful.” Judge Chen is right.

But Judge Chen’s nomination process exemplifies why there are not more judges like him. Chen was first nominated in August, 2009. Chen, not just a former ACLU lawyer but also one of the first Asian Pacific American nominees on the court, received the highest possible rating of unanimously well qualified from the American Bar Association, and had experience as a magistrate judge. His nomination was nonetheless subject to relentless obstruction and an “unseemly smear campaign,” with the Senate sending his nomination back to President Obama for three sessions in a row. Obama stood behind his nominee, and, after the vacant court seat had sat empty for more than two years, Chen was eventually confirmed in May 2011. The successful confirmation required not just the commitment of Obama, but also of Chen. Most nominees cannot tolerate the toll on their career imposed by several years of nomination limbo and Senate scrutiny. And the White House does not have the political capital to push through very many Chens, meaning most of his nominees have had similar professional experience to that of his Republican predecessors. Other nominees, like Rhodes Scholar and award-winning teacher Goodwin Liu, never made it through this obstruction at all.

In her address to the progressive legal community at the American Constitution Society’s national convention, Warren calls for “a new generation of judges, judges whose life experience extends beyond big firms, federal prosecution, and white collar defense.”

While professional diversity has lagged, Obama has made unprecedented progress in contributing to race, gender, and sexual orientation diversity on the federal courts. But combating the corporate chokehold on the ideological leanings of nominees may prove an even more difficult challenge.

Researchers find judicial bias against employees

Judicial appointees are human beings, and it is no secret that some of them believe employment cases are the red-headed stepchild of civil litigation. We and others have discerned a judicial distaste for employment cases, probably due to a variety of factors, likely including the following: many employment cases are filed by attorneys who are not particularly experienced in the area of employment law – they pick cases with bad facts that probably don’t belong in litigation; employment cases usually don’t involve claims for millions of dollars in damages; a perception that at the end of the day, the only harm that occurred is the loss of a job; and a belief that regulation of an employer’s decision-making process interferes with operation of a free market.

Two recent studies argue that that there is, in fact, an observable bias against employment plaintiffs in federal court.  Federal Court Bias Against Employment Plaintiffs and NELA Report – Judicial Hostility to Employment Plaintiffs examine various empirical data and find statistically significant higher rates of adverse outcomes against employment plaintiffs than in almost any other civil case filed in federal court. Alarmingly, researchers find a high correlation between a judge’s political party and their case decisions. See, for example, this recent article in the New York Times Review of Books by Cass Sunstein, one of the foremost scholars on the federal judicial system in the United States.

To be certain, many federal judges care deeply about making the right decisions. They work long hours and carry heavy case loads. They respect skillful lawyers on both sides of the aisle, and strive mightily to render impartial decisions based on the facts before the court and the controlling rules of law. These judges represent the best of the third branch of government. Nevertheless, the patterns discussed above are impossible to ignore.   Pittsburgh employment lawyers and employment attorneys all over the United States must work together and with the judiciary to arrest these disturbing trends.