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What Matters: Biden's First Slate of Judges

Susan Estrich on

President Biden made public his first slate of nominees for current vacancies on the federal courts. It was the most diverse set of nominees any president has ever sent to the Senate. It was easy to miss the story -- even I almost did -- between the pandemic and the vaccine; worries about family, money and the rest. But it matters, and it will continue to matter, because judges don't simply apply the law like robots. If it worked that way, Silicon Valley would have figured out a way to replace them. It matters where they are coming from, both literally and figuratively, because that influences how they see things, including disputes.

Biden's slate includes three Black women, led by the Judge Ketanji Brown Jackson, whom he nominated to the U.S. Court of Appeals for the District of Columbia Circuit. She was nominated to fill Attorney General Merrick Garland's seat, to the court that has consistently served as a steppingstone to the Supreme Court. If confirmed, she would be the only Black woman on that court and one of -- get this -- five -- that's five -- Black women of the 179 current judges on all the courts of appeals in this country. One more fact, courtesy of the National Law Journal: Twelve of the last 13 nominees to the United States Supreme Court have come from the U.S. Court of Appeals.

During his term, former President Trump appointed more than 200 federal judges. Two were Black women. I don't believe President Trump and his team set out to exclude Black women. Not at all. The problem has been twofold: where they were looking and who was looking. Trump and his team looked for conservatives among the elite of the top law firms in America. Smart people. My old crowd. Overwhelmingly white men, many of whom did a stint as a federal prosecutor in one of the elite offices such as New York or Washington and were law clerks on the federal court -- better yet, the Supreme Court. Equality and diversity are found at the bottom of Big Law, not at the top. The same lack of diversity plagues law schools, and the yearly crop of Supreme Court clerks.

The second problem, of course, is the people doing the looking. It is absolutely unconscious instinct that will always lead me to mini-me's when I am hiring. And mini-me's are always women. I have probably hired as many men over the years as Trump did with federal judges. So if you want a diverse slate of nominees, you need a diverse group of people doing the screening. Trump's White House counsels have always been white men. Biden's lead lawyer is a woman.

But it isn't just the White House that has made former prosecutors in elite white-shoe firms the pool for presidential appointments. Traditionally, senators recommend judges for appointment in their districts. Take a look at the Senate, not to mention the American Bar Association, which has traditionally served as the "impartial" private screen and tends to favor the same people presidents favor. Former President Obama's team is now saying publicly what we all suspected: that when it sent over the names of people with diverse backgrounds -- public defenders, sole practitioners, members of firms nobody has heard of -- they were told privately that the candidates would be rated unqualified, so their names were never even made public. Need I add that most members of the elite committees of the bar come from the same pool that most judges have. Biden's team did not seek the permission of the ABA before sending the names to the Senate.

 

Why does it matter? Why does it matter if there are Blacks and Asians and Muslims and public defenders and solo practitioners, who represent regular people and not just big companies, on the court? Obviously, it matters symbolically. I'm not talking about giving little Black girls more to dream about. I'm talking about the respect the community will give to the rule of law, which is to say its legitimacy.

But it also matters in the decisions we make. Applying law to facts is not a mechanical task. Sure, some cases are easy, and sometimes the law is clear. But that's not what people are fighting about, certainly not at the appellate level. They are asking judges to interpret the words of a statute, the words of the Constitution, to decide how it applies to the dispute before them, to their property or their liberty. And just like anybody who is making hard decisions, it matters where you are coming from.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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