Biden Should Nominate Judges Who Battled the Government in Court

More criminal defense lawyers, public defenders, and civil rights litigators may soon be appointed to the federal bench.


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

On December 22, incoming White House Counsel Dana Remus asked Democratic lawmakers to start identifying judicial candidates "whose legal experiences have been historically underrepresented on the federal bench," such as criminal defense lawyers, public defenders, and civil rights litigators. That is welcome news.

As Cato Institute criminal justice scholar Clark Neily pointed out in Slate, 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 wrote, "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."

That is one point on which libertarian and progressive legal activists 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," Sherrilyn Ifill, head of the NAACP Legal Defense and Education Fund, told journalist Anand Giridharadas in December. "Public defenders have essentially been shut out. So I'm not interested in a lot of black prosecutors being appointed to the federal bench….I'm not interested in cosmetic diversity. I'm interested in substantive diversity."

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 turning over a new leaf, one positive thing he can do as president is to appoint more judges whose experience includes battling the government in court.

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  1. “diversity”

    Oh great more unqualified kaffirs.

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  2. such as criminal defense lawyers, public defenders, and civil rights litigators

    I’m going to guess heavy on the “civil rights litigators”, i.e. the lawyers that regularly represent community activist sorts such as the Sierra Club, Greenpeace, NARAL, Code Pink, the Center for Law and Social Policy, the Center for Science in the Public Interest, Physicians Committee for Responsible Medicine, etc. whose whole shtick is demanding more government and more government spending. Do you really think the government is going to hire people who want the government to do less?

    1. Civil-rights litigators are the most anti-freedom people around. They sue private employers for offensive workplace speech (“hostile work environment”) or paying people based on productivity rather than their gender (“wage disparities”) or not hiring based on a racial quota (“disparate impact”).

      Public defenders are the closest thing there are to Marxists. Some of them think property is theft, and many think that no one should go to jail for stealing because that is “mass incarceration.” Many of them think literally everything is racist (including not just the entire criminal justice system, but the capitalist system itself). Look at what a senior public defender in LA said recently.

      1. True. Maybe I’m just cynical, but the procedural due process rights of criminal defendants don’t, in the larger scheme of things, limit the powers of the Administrative State very much. Most of the “civil rights” litigation over that last 50 years has resulted in even bigger, more centralized, and more intrusive government.

  3. Gonna be saying this a lot:

    If that’s what you wanted, you should have supported Trump.

    HE could have been persuaded to do something like that. Biden is basically the exactly wrong President to expect it of, with the exactly wrong VP waiting behind him.

  4. A) have you even seen him lately (or ever ?). The man is a walking corpse who can barely stumble through a brief prepared remark. Seriously try to imagine him trying to think about nominating someone to any position. Did you imagine a frail old man squinting with his mouth hanging agape and zero idea what is about to come out of his own mouth ? A better title would be ‘Biden should enter a nursing home’.

    B) does KMW force you to walk around blindfolded with your fingers in your ears ? I swear, it’s like you people still have zero idea what is going on.

  5. Biden isn’t the one nominating anyone. He just signs the paper when and where he’s told to.

    1. ^ this

  6. No one cares what you guys think Biden should do. Reason writers are shallow and will sell out America to stop mean tweets.

  7. Expecting Biden to nominate any judge other than one that licks the government boot is a naive pipe dream.

  8. Sure, professional experience could bring diverse thinking to the bench.

    As long as you don’t have a penis or white skin.

  9. We’ll see. If his administration gives us more judges like Sonia Sotomayor, particularly on the 4th Amendment, well he could do faaaar worse.

  10. Finally, someone who understands what “diversity” means. Good for Ifill.

  11. Yeah, a big gov guy like Biden is going to choose anti-government judges.

  12. It is true, though, that judges at all levels, are more likely to be former prosecutors. They’ve been around the courthouse and made connections that bankruptcy lawyers and trust-and-estates lawyers most don’t have the time or opportunity to do. I have noticed that a certain number of Public Defenders make the switch to prosecutors, though.

    1. Yeah, but private criminal defense lawyers are around the courthouse a lot too, and you rarely, if ever, have them getting nominated for the bench. Granted, few want the pay cut, but still… Shoot, many of them don’t even have prosecutorial experience, which is one reason Sotomayor’s criminal justice opinions are often a breath of fresh air.

      I don’t think looking for jurists in different places is necessarily a bad idea; I just think, as was stated above, that Biden and Harris are exactly the wrong people to lead this effort.

  13. I’ll temporarily hold of my “hahahaha” for now, but I predict after there’s actually been some judges nominated I’ll be bringing it out. Hope I’m wrong.

  14. all the same machine.

  15. “criminal defense lawyers, public defenders, and civil rights litigators”

    I would suspect that there will be a lot of “civil rights litigators,” which as noted above means people who sue private companies or sue the government for not being big enough.

    It’s even possible that the civil rights litigators are more plugged in to the new nomination priorities than defense lawyers.

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  17. He’ll pick more people just like his VP. Exactly the wrong people any sane person wants in the judiciary.

    Next up, a pardon for Leland Yee and subsequent seat in the 9th circus.

    1. I confess, I meant to type circuit but this is one of those rare instances where autocorrect made the better choice.

  18. The Biden team is looking to bring some much-needed professional diversity to the federal bench.

    I assume that’s true of federal courts overall even if I have no idea whether it is or not. But yeesh the career narrowing doesn’t start with the judge on the bench. It starts with those who become law clerks for judges. Who don’t get paid much for that but who can get a $400,000 bonus from the law firm that hires them with that on their resume. Harvard and Yale produce the vast majority of SC law clerks and have since 1960. Which means the ConLaw professors from two law schools are the ones who frame SC training. Add Stanford for federal clerks – but apparently not much for the SC law clerks

    The US has become as judicially narrow minded as some of the small countries who only HAVE one or two serious law schools.

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