Special To The Washington Post
After graduating from Georgetown University Law Center in 2010, like many newly minted graduates, I started my legal career at a large corporate law firm headquartered in New York. I spent the first six years of my career working at law firms before transitioning to an in-house role at a music licensing organization. I was surprised to learn last week that, solely because of my professional background, I should be disqualified from ever serving as a federal judge.
In a piece published in the Atlantic last Wednesday, Brian Fallon and Christopher Kang, co-founders of the progressive organization Demand Justice, urged the next Democratic president to refrain from nominating anyone who has served as a “corporate lawyer,” meaning a “Big Law” partner or an in-house counsel at a large firm for a federal judgeship. The group believes that the number of judges with such experiences creates an “insular, back-scratching network of legal elites who work together to promote corporate interests.” But not everyone who works at a corporate law firm is the same. And in trying to purge corporate influence from the judiciary, Demand Justice risks making the ranks of judges more homogenous in another way: namely, whiter and richer.
I can say this from experience. My decision to accept an offer in Big Law was not driven by any allegiance to corporations or any Machiavellian analysis of whether it would be a springboard for future political ambitions. Instead, it was a matter of practicality. To have enough money to pay off my student loan debt, which totaled more than $100,000 after three years of legal education, and send money home to support family members, I needed the six-figure salary that my firm was offering. Big Law offered an opportunity to earn enough money to lift myself, and by extension my family, out of poverty and into the middle class. When I left private practice, I briefly considered transitioning to a position at a nonprofit or a foundation. But as the first in my family to graduate from law school, I can’t afford the pay cut associated with such a career path.
Many attorneys of color are in the same position. In 2013, a special report written by the Illinois State Bar Association found that black and Hispanic law students are more likely to have student loan debt and are also more likely to have higher amounts of debt than their white counterparts. Another study conducted by the Center for Postsecondary Research at Indiana University found that 61% of black law student graduates had accumulated more than $100,000 in student loan debt compared with only 40% of white students.
According to the Illinois State Bar Association study, the prospect of such debt discourages black and Hispanic students from applying to law school in the first place. If there are fewer black and Hispanic lawyers because of these financial burdens, and those who pass the bar exam carry higher debt loads, Demand Justice’s standard could shrink the ranks of potential black and Hispanic judges still further.
In fact, Demand Justice’s proposal would have prevented a number of President Barack Obama’s historic appointments to the federal judiciary.
Justice Sonia Sotomayor, who became the first Latina judge on the Supreme Court and who has frequently ruled in favor of employees and unions, would have been disqualified from service. So would Loretta Copeland Biggs, who became the first black woman to serve on a federal court in North Carolina in 2015, and previously worked as a partner at Davis, Harwell & Biggs. The proposal would also exclude Lucy Koh, who is the first Korean American Article III judge. Although Koh worked as a partner at McDermott Will & Emery representing technology companies, as a judge she has not hesitated to hold some of those same companies accountable for engaging in anti-competitive behavior. In May, she upheld a finding by the Federal Trade Commission that Qualcomm violated antitrust law by refusing to supply semiconductor chips to companies unless they also licensed Qualcomm’s patents.
Though Obama made significant strides in diversifying the federal bench - 36% of his appointees were nonwhite - that is just the start. And President Donald Trump’s appointments, 87 of whom have been white, could easily reverse that trend.
There is no doubt that the next Democratic president will need to do substantial work to counteract the impact of Trump’s judicial appointments. But painting anyone who has ever worked on behalf of corporate clients as an enemy of the people isn’t the way to start.
Erika Stallings is an attorney and freelance writer based in New York City.