Biden's Judicial Picks Should Include Lawyers Who Battled the Government in Court

The incoming president can bring some much-needed professional diversity to the federal bench.


Libertarians are sure to be unhappy with plenty of incoming President Joe Biden's judicial picks. But there is one glimmer of hope on the courtroom front. The Huffington Post reports that the Biden team is looking to bring some much-needed professional diversity to the federal bench:

In a letter obtained by HuffPost, Biden's incoming White House counsel Dana Remus tells Democratic senators to try to find public defenders and civil rights attorneys in their states who they think would be a good fit for a federal judgeship.

"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," reads the Dec. 22 letter.

That is welcome news. As Cato Institute criminal justice scholar Clark Neily has pointed out, there is a "wild imbalance" on the federal bench "between judges who used to represent the government in court and judges who used to challenge the government in court." Given that "nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice," Neily noted, "to further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole."

This is one point on which libertarians and progressives can agree. "The federal courts have largely become peopled with lawyers who are former prosecutors, which has entirely skewed the lens through which the law is seen. Public defenders have essentially been shut out," Sherrilyn Ifill, the head of the NAACP Legal Defense Fund, told an interviewer last month. "I'm not interested in a lot of Black prosecutors being appointed to the federal bench," she continued. "I'm not interested in cosmetic diversity. I'm interested in substantive diversity."

To say the least, Joe Biden is not the most promising figure from the standpoint of criminal justice reform. During his long career in politics, he stood out as an inveterate drug warrior and law enforcement booster. But it is never too late to make amends. If Biden is even remotely serious about pursuing criminal justice reform, one positive thing he can do as president is to nominate more judges whose experience includes battling the government in court.