Who Is, and Is Not, On the Demand Justice #SCOTUS (Not-So) Shortlist?

Omitting all "partners at corporate law firms" excludes most judges from Hillary Clinton's hypothetical shortlist

|The Volokh Conspiracy |

Demand Justice has released a "shortlist of possible [Supreme Court[] nominees in the next Democratic administration." The group selected 32 "brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation."

Who was selected? The nominees generally fall into 5 broad categories:

  • Academics: Michelle Alexander (Union Theological Seminary),  James Forman, Jr. (Yale), Pamela Karlan (Stanford), M. Elizabeth Magill (Virginia), Melissa Murray (NYU), Bryan Stevenson (NYU), Zephyr Teachout (Fordham), Timothy Wu (Columbia),
  • Progressive Litigators: Brigitte Amiri (ACLU), Nicole Berner (GC SEIU), Deepak Gupta (Gupta Wessler), Dale Ho (ACLU), Sherrilyn Ifill (NAACP LDF), Shannon Minter (National Center for Lesbian Rights), Nina Perales (MALDEF), Thomas A. Saenz (MALDEF), Cecillia Wang (ACLU),
  • Current/Former Government Officers: Xavier Becerra (California AG), Sharon Block (one of the three NLRB appointments at issue in Noel Canning), Vanita Gupta (Former Obama DOJ), Lawrence Krasner (Philadelphia DA), Catharine Lhamon (U.S. Commission on Civil Rights), Katie Porter (House of Representatives), Jenny Yang (Former EEOC Chair)
  • Federal Judges: Richard F. Boulware (D. Nev.), Jane Kelly (8th Circuit), Cornelia Pillard (D.C. Circuit), Carlton Reeves (S.D. Miss.)
  • State Judges: Mariano-Florentino Cuéllar (California Supreme Court), Anita Earls (North Carolina Supreme Court), Leondra Kruger (California Supreme Court), Goodwin Liu (California Supreme Court),

Who didn't make the cut? We can speculate. In July 2016, the Hill published a potential shortlist from a Clinton administration. Of these 11 names, only three made it onto the Demand Justice List: Judge Jane Kelly (8th Cir.), Justice Goodwin Liu (California Supreme Court), and Justice Mariano-Florentino Cuéllar (California Supreme Court). Eight names were left off the Demand Justice list:

  1. Chief Judge Merrick Garland (D.C. Cir.)
  2. Judge Sri Srinivasan (D.C. Cir.)
  3. Judge Paul Watford (9th Cir.)
  4. Judge Jacqueline Nguyen (9th Cir.)
  5. Judge Lucy H. Koh (N.D. Cal.)
  6. Judge Patricia Millett (D.C. Cir.)
  7. Senator Amy Klobuchar (D-Minn.)
  8. Senator Cory Booker (D.-N.J.)

Garland's re-nomination was never a serious option. And it isn't clear that Demand Justice considered elected officials, such as Klobuchar and Booker. But what about the other Obama appointees? The not-so-shortlist excluded many possible nominees-by design. Demand Justice explains:

None of the lawyers on our list are corporate lawyers, in keeping with our call for the next president to avoid nominating any more lawyers who have been partners at corporate law firms or in-house counsel at large corporations. Instead, our list boasts a wide range of former public defenders, public interest lawyers, academics, and plaintiff's lawyers.

Judges Paul Watford, Sri Srinivasan, Jacqueline Nguyen, Lucy H. Koh, and Patricia Millett all worked in private practice. Those careers, apparently, rendered them ineligible for the Supreme Court. Also excluded is Judge Ketanji Brown Jackson (D.D.C), whom Tom Goldstein tapped to replace Justice Scalia. She worked in Big Law.

Who else would not make the list? Justice Sotomayor was a partner at Pavia & Harcourt. She would have been out. Justice Kagan briefly served as an associate at Williams & Connolly. Would she have made the cut?

Ultimately, I welcome these lists. They provide the public with insights into the type of jurists an administration would consider. Though, it's difficult to know how much weight to put on Demand Justice's roster. Unlike President Trump's original list, the current list was not released–or even endorsed–by any campaigns.

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  1. Why are they publishing this hit list? Trump and the Republithugs will have all these folks killed or doxed into uselessness, just like they’ll do to the Ukraine whistleblower, if they ever find out who that is.

    1. What Ukrainian “whistleblower”!

    2. Is this the “whistleblower” who is a Joe Biden supporter and wants to testify anonymously about matters that he has no first hand knowledge of, and just heard about through gossip?

      That whistleblower?

    3. I don’t love the melodrama of your comment, but I do love the subsequent posts proving you correct.

      1. ????????

        1. Supposed to ROFL emojis

  2. I think that they have a problem here. Top law school grads seem mostly either to go into academia or join big corporate firms. Academics often write controversial articles, that may adversely affect their confirmability. Then, there is the problem, that has surfaced with the candidacy of Camela Harris that a large percentage of government lawyers were prosecutors at some point, or, like her, top prosecutors, who inevitably have jailed POC, likely out of proportion to their percentage of the population (because POC are typically more likely to break laws). Besides, former prosecutors almost invariably take their preference towards and trust of LEOs onto the bench. Public defenders often come from the bottoms of their law school classes. In the end, I suspect that these constraints would greatly reduce the quality of acceptable judicial candidates.

    Of course, then the question arises whether this is a bug or a feature. Is the real goal to reduce the competence of the Judiciary, in order to increase the acceptance of progressive policies that would be more likely rejected by a brighter and better qualified Judiciary.

    1. “Public defenders often come from the bottoms of their law school classes” (citation needed)

  3. Snort. “DemandJustice is Brian Fallon’s outfit.

    “In 2016, Fallon served as the National Press Secretary for Hillary Clinton’s presidential campaign. ”

    Anyone from Wisconsin on it?

  4. I may as well be the first to say it – I thought there were no Democrat or Republican judges, just “judges”?

    Still, I am also glad they put out these lists, and it helps us to not pretend.

    1. I thought there were no Democrat or Republican judges, just “judges”

      Did you? I didn’t.

      1. Why the snark? I was playing off the comments of Chief Justice Roberts, who said that there were no Obama judges (after President’s Trump’s complaint of bias) and that there were just judges.

        1. Not intended as snark, sorry.

          I’m familiar with Roberts’ comment. I sort of assumed you didn’t agree with it any more than I do.

          Of course there are many cases – probably the vast majority – that have no political salience, so the judge’s political views are irrelevant.

          1. Thanks!

            I agree, the vast majority of cases the judge’s political viewpoints are mostly irrelevant. However, I would add that when it is not irrelevant, it makes a big difference one way or another.

  5. 32 “brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation.”

    This is the description of a politician’s job, not the job of a Supreme Court justice, who is to prevent governmemt from taking on new powers at its whim, sans constitutional amendment.

  6. Very few straight white males listed. Which, on the one hand, I support- we need a more diverse bench. On the other hand, that may connect to OP’s point about big firm law practice. A lot of liberal white male lawyers go cash in rather than going to work in public interest law.

    1. We need more wise latinas, amiright?

      1. Maybe we could just try to not have two white male children of beltway insiders who literally went to the same private high school on the Court.

        1. Agreed, and to your comment before, lets have some non-ivy leaguers too with more diverse work experience. I vote for Eugene Volokh regardless.

          1. We only have 2.5 ivies represented. (Ginsburg was only at Columbia for a year IIRC) The bench would suddenly be more diverse if there were a Penn grad. Or a Stanford grad. (I know its not an ivy, but it’s as prestigious if not more than all but Harvard and Yale for law.) While there are only nine slots there could still be more than 2-3 ivies represented. There are 11 more schools in the T-14. It could be more diverse even in terms of its elite schools.

        2. “white male ”

          Why does their race and sex matter to you?

          Your complaint I think is they are “beltway insiders who literally went to the same private high school”, hence share to close of an outlook.

          If they were black female children of “beltway insiders who literally went to the same private high school” that would not bother you?

          Focusing on race and sex is racist and sexist.

          1. Suppose you were part an alien anthropological team studying America, and you were looking at their dispute resolution procedures. You find out the demographics of every person who has served on the Court. Then you looked at the demographics of the society that Court serves. What would you conclude about that society?

            1. It’s a historically male dominant society that has become more co-equal between the sexes since chemical birth control has become widely available.

            2. It’s this mentality that confirms my long-held feeling that non-whites are largely cultural outsiders in America, and always will be. They are almost always disaffected and angry. Not a good recipe.

              1. I don’t think non-whites are always disaffected and angry; I know enough of them, and that hasn’t been my experience.

                Now, the non-whites who climb to positions of power within the left? Yeah, absolutely. But the whites next to them are disaffected and angry, too; It isn’t their skin color, it’s that they’re left-wingers.

                If you’re pushing socialism in a prosperous capitalistic nation, OF COURSE you’re going to be disaffected and angry. How could you not be?

          2. To answer your question more directly, it would still be weird, but much less bothersome. Pretending that race and sex don’t have an affect on outlook is absurd.

            1. Sorry. “Effect.”

            2. So, if kavanaugh and Gorsuch were daughters of black DC insiders who went to the same private school, its ok with you?

              1. It’s not great, assuming they also have practically the same legal/professional background (Harvard/Yale law, DC big law, stints in the executive branch). It’s still better given both the current and historical demographics of the Court and the current demographics of the country generally, and the legal profession in particular.

                1. So, your real complaint is that they are “white males”

                  Racist and sexist thinking no matter what imaginary aliens might think.

                  1. Perhaps. But it also doesn’t have the convenient side effect of keeping people who look and think like me and you in power in perpetuity at the expense of everyone else. You and the Trump administration can claim you’re non-racist Non-sexist as much as you want, but when your party generally and judicial nominees in particular consistently skew heavily towards a few demographics, you’re probably not as non-racist or non-sexist as you believe you are.

                    But, you probably assume that you’re non-biased and objective on the issues of race and sex. And why wouldn’t you be? If POC and women would just ignore their entire life experiences and look at things LOGICALLY they’d see that conservative white men like you understand race and sex best.

                    You’re not of course. But you tell yourself that so you don’t feel morally compromised by bigotry or sexism and conveniently don’t have to question your own place and power in society. It’s a win win. So congrats?

                    1. White guilt, male feminism and “white knighting”

                      Impressive trifecta.

                    2. Bob,

                      I don’t feel guilty. I just want power to be shared more equitably with the people it’s used against.

                      “Male feminism” tells me you’re not a serious person, so I’m not even going to engage with that.

                      You can label me a white knight if you want, but I can think of worse things to be in the world than a self-indulgent internet commentator.

                    3. LawTalkingGuy: You haven’t heard of male feminism and male feminists?

                    4. It’s a nice story…. of course, the counter-point is Miguel Estrada.

                      Miguel Estrada was fillibustered by the Democrats for a circuit court judge for two reasons.

                      1. He was conservative. But more importantly…
                      2. He was Hispanic.

                      And if there’s one thing liberals hate more than white conservatives, it’s non-white conservatives.

        3. “Maybe we could just try to not have two white male children of beltway insiders who literally went to the same private high school on the Court.”

          Sotomayor and Kagan both grew up in NYC and went to Princeton. I assume you complained about their nominations for the same reason?

          1. I wasn’t necessarily thinking about it at the time, although the school thing for Kagan does jump out.

            While they did share an undergraduate education and a similar legal one they had quite different family and professional backgrounds. Kagan was a SCOTUS clerk, academic, and White House insider and solicitor general. Sotomayor by contrast was a prosecutor who actually tried cases in a state court, a civil litigation attorney at boutique firm, and a trial judge prior to being on the circuit court.

            With Kavanaugh and Gorsuch, it’s not just the school, it’s how much of their professional and family background was the same.

    2. The question is, do we really need to over-represent non-straight judges? And doesn’t concentrating on ethnic and gender identity mean de-emphasizing competence?

      But, of course, competence isn’t the point of this list.

      1. No. Because there are far more qualified people than positions available. Especially for SCOTUS, which is a group of nine, nominated one at a time every few years. So it is very easy to find qualified people of diverse backgrounds if you care to look.

        1. Some people look at a wealth of qualified people, and say, “Cool, we can go for hyper-qualified, and still have enough to pick from!”

          Others look at a wealth of qualified people and say, “Cool, we can pick people on the basis of something other than their qualifications, like the melanin content of their skin, or their sexual quirks!”

  7. It would be nice if there was more legal diversity on the federal appellate bench generally. People tend to forget that a lot of what SCOTUS and the appeals courts do is to provide guidance to lower courts (including state courts), practitioners, and federal agencies.

    SCOTUS could use a justice with significant criminal defense experience (actually representing clients in person, not just appointed appeals). It could use some justices with significant trial court experience generally (there is only one former trial court judge on SCOTUS right now). Maybe some justices who, God forbid, might have had any significant state court experience at any level (state courts end up construing federal statutes all the time). Maybe a patent attorney or anyone with IP experience. I know there are “biglaw” attorneys on SCOTUS, but are there any with significant bankruptcy experience?

    Although there are only nine slots, there could be a lot more legal diversity.

    1. I have always liked Jane Kelly as a Supreme Court prospect in part because of her background as a federal public defender for nearly 15 years.

      1. Me too. And it’s also important to note that someone who is appointed the federal defender for a district is chosen by the circuit court where the district is located. So it’s not just some bottom of the barrel attorney who couldn’t get another job.

        1. “Kelly became an assistant federal public defender in the Northern District of Iowa, in 1994 and served as the supervising attorney in the Cedar Rapids, Iowa office, from 1999 to 2013.”

          Seems like a mid level lawyer.

          She went to yale Law. I thought you wanted more diversity?

          1. Harvard. I stand corrected, apparently she wasn’t appointed as the federal defender. The circuit-appointed defender appointed her to supervise one of the office.

            A woman who is a former public defender serving on the Eighth Circuit would be a big change in comparison to the backgrounds of the Court’s current justices, even if she went to Harvard. See, it’s not just the school, it’s everything about the nominated person. The school is part of it, of course. But again, when you end up with a situation where you nominate two justices back to back with such starkly similar demographics and legal background, I don’t think that’s good for the credibility or quality of the Court long term.

  8. Unlike President Trump’s original list, the current list was not released–or even endorsed–by any campaigns.

    So why are we even talking about it?

    1. Because the Democrats aren’t going to warn us about who they’d put on the Court, this is the best clue we have.

  9. I’m surprised there isn’t a race/ethnicity/gender identity score card out there linked in the article.
    You could also throw in a Law School scorecard as well.

  10. What percentage of these judges attended Harvard or Yale law school?

  11. 1) Judge Dredd
    2) Judge Judy
    3) Mike Judge
    4) Judge Knott

    1. Judge Reinhold?

      1. In recognition of thr playoffs, I nominate Aaron Judge.

        1. Downer tonight!

    2. Judge Crater?

  12. Republicans pick judges who are conservative. Democrats pick leftists who are judges. You can deny this all you want but you can’t change the fact that for the past several decades Justices chosen by the left have been a lot more in lockstep with their overlords than the Justices chosen by the right.

    1. Trump’s judicial nominees have been as white and male as the Conspiracy.

      Just the way to-be-replaced clingers like it.

      1. So is this a roundabout way of saying Jews are over-represented in high prestige areas and this needs to change?

        I think you should get to know some of the people you criticize. You might like them more than you think.

      2. I get the idea that the Rev is (a) old (b) white and (c) of Southern origin. Maybe he’s hoping that if he denounces old white Southerners the SJW crocodile will eat him last?

        1. He’s a self-hating goober.

  13. Josh Blackman: It isn’t clear that Demand Justice considered elected officials, such as Klobuchar and Booker.

    Also Josh Blackman: Current/Former Government Officers … Katie Porter (House of Representatives).

  14. Also, is DemandJustice the group that tried to label Eric Miller as unqualified for the Ninth Circuit because his firm often represented parties in opposed to tribal interests and tribal sovereignty? That struck me as incredibly odd because the firm, Perkins Coie, is the go-to Democratic Party firm which represents the DNC, the Democratic Leadership Council, the DSCC and DCCC.

  15. Hi, Josh. Many years ago I taught for one night at South Texas in place of a friend who had to be out of town. It was Torts, not ConLaw. Hope the school is doing well. Jim Brock, JD Georgetown 1960

    1. The guy was Bernie Reiter. Some of your buds might remember him.

  16. Whoever’s comment was ‘flagged for review’
    about 6:15, sorry, was trying to close an ad.

  17. And now the right wing list, headed by Franklin Graham, John Bolton, and Steve Bannon.

  18. Oh, great, Catharine Lhamon, the gal who screwed the campus court system. We may be better off if Trump gets re-elected.

  19. But, but, but …. keeping Garland off was literally worse that Hitler!

    Surely he is the only name on the Democrat list, right?

  20. Mike Judge.
    But seriously: why isn’t Kamala Harris at the top of this list?
    All kinds of diversity, including the most needed diversity (career background).

  21. “it isn’t clear that Demand Justice considered elected officials, such as Klobuchar and Booker.”
    They must have as Becerra is on the list and he was the Rep. for Cali’s 34 congressional district. Maybe they only ruled out existing congress critters and will accept those that have been reformed.

  22. Catherine Lhamon, ugh. Always great seeing an anti-civil rights extremist on the list. Sucks seeing the left betray its otherwise superior position on civil rights in order to completely gut the entire idea of due process when its in conflict with this ridiculous ‘social justice’ fad where the answer to unfairness in the past is to be just as unfair to the other side.

  23. It appears the climate on the left has changed and more overtly political candidates are favored, to the point where a Merrick Garland would be considered a stuffed-shirt traditionalist in comparison.

    Some of the candidates appear to be roughly comparable to a Republican President nominating the general counsel for National Right to Life or similar.

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