Labor Lawyers and Biden's Judges

Obama nominated more management lawyers than union lawyers to the federal judiciary. Biden cannot do the same.

Former Supreme Court Justice, Secretary of Labor, Steelworkers attorney, and CIO General Counsel Arthur Goldberg, one of the only union-side labor lawyers to ever serve in the federal judiciary.

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Joe Biden’s judicial nominations, to the extent that he will be able to get any of them confirmed, will matter a great deal. Donald Trump was able to confirm 232 Article III judges in just four years—including three associate Supreme Court Justices, 54 Courts of Appeals judges, and 172 District Court judges—which yanked the federal judiciary significantly to the right. This rate far outpaced the 329 judges Barack Obama got confirmed in eight years: two associate Supreme Court Justices, 55 Courts of Appeals judges, and 268 District Court judges. This was due in large part to Congressional Democrats’ refusal to gut the judicial filibuster until Harry Reid finally deployed the nuclear option in November 2013.

More damning was the relatively moderate personnel which comprised the vast majority of Obama’s nominees. We can measure this through the lens of labor law. Despite the usually rock-solid progressive bona fides of the union-side labor bar, by my count Obama nominated just five such lawyers to Article III posts:

  • Denny Chin, Second Circuit: worked for Vladeck, Waldman, Elias & Engelhard from 1990-94, where he represented employees and labor unions. (Elevated from Southern District of New York.)

  • Jane Branstetter Stranch, Sixth Circuit: worked for Branstetter, Stranch & Jennings from 1975-2009, where she represented employees and labor unions.

  • Dolly Gee, Central District of California: worked for Schwartz, Steinsapir, Dohrmann & Sommers from 1986-2009, where she represented employees and labor unions.

  • Robert D. Mariani, Middle District of Pennsylvania: worked in solo and small-firm practice for over 40 years, representing almost exclusively labor unions.

  • Indira Talwani, District of Massachusetts: worked for what are now Altshuler Berzon and Segal Roitman from 1989-2013, representing employees and labor unions.

Union lawyers have never commanded much of a presence in the Democratic selection process. The few judges who possessed this background are mostly household names in the labor movement, including Supreme Court Justice Arthur Goldberg, D.C. Circuit Judge Abner Mikva, and Ninth Circuit Judge Marsha Berzon. But reserving just five slots out of 329 for committed workers-rights advocates is still startling. Indeed, it’s less than the number of slots that Obama awarded to management-side labor and employment lawyers:

  • Abdul Kallon, Northern District of Alabama: partner for Bradley Arant Boult Cummings in the firm’s labor and employment practice.

  • Cathy Bissoon, Western District of Pennsylvania: partner for Cohen & Grigsby, where she chaired the firm’s labor and employment practice.

  • Mark R. Hornak, Western District of Pennsylvania: partner for Buchanan, Ingersoll & Rooney in the firm’s labor and employment practice.

  • Miranda Du, District of Nevada: partner for McDonald Carano Wilson, where she chaired the firm’s labor and employment practice.

  • Kristine G. Baker, Eastern District of Arkansas: partner for Quattlebaum, Grooms, Tull & Burrow, specializing partly in labor and employment law.

  • Waverly D. Crenshaw Jr., Middle District of Tennessee: partner for Waller Lansden Dortch & Davis in the firm’s labor and employment practice.

  • Robert F. Rossiter Jr., District of Nebraska: partner for Fraser Stryker in the firm’s labor and employment practice.

Of course, these are just the lawyers who specialized in anti-union work. Many more likely dealt sporadically with unions in their broader corporate practice, such as D.C. Circuit-nominee Patricia Millett’s successful representation of Starbucks against the National Labor Relations Board during her time as a partner at Akin Gump. It is impossible for me to track all of this, but it is safe to say that management rights were far more represented than labor rights in Obama’s judicial selections.

(Please add any names I’ve missed on either side in the comments. These lists are solely accrued from memory and a Wikipedia search.)

Those reading Labor Law Lite do not need a breakdown on why this is a problem for progressive politics. It is especially glaring in light of unions’ full-throated support of Obama’s two election campaigns. Why were union-side lawyers getting less attention from Democratic insiders than management-side lawyers? Why were the latter getting any attention at all?

We don’t have to just look at union-side labor law experience, though. Obama’s Article III nominations were also devoid of any lawyers who worked at any point for the NLRB. Many of Obama’s selections possessed civil servant experience in various federal agencies or executive departments, especially in glamour positions in the Department of Justice, but labor law enforcement was apparently not on his advisers’ radar among the list of desirable traits.

Following several years of blatant conservative politicking of the courts, one would hope that Biden’s team is more willing to look towards judicial candidates that have proven left-of-center track records. That could be demonstrated through union work, public defense, civil rights litigation, or in a host of other non-corporate fields. Unlike those populating the numerous BigLaw rosters, one does not need to sift through these lawyers’ resumes to detect how they are likely rule in pressing areas of American jurisprudence. Their chosen career paths already inform us.

I do not mean to suggest that Biden should be held to a standard of nominating a hundred union lawyers over the next four years. Labor law as a discipline has been declining for years commensurate with unions’ diminishing membership. There are only a few thousand such lawyers in the country, and when looking towards neutral labor experts, the NLRB is down to just a few hundred attorneys in the agency’s ranks. This post is merely meant to highlight the relative absence of labor lawyers in the progressive legal spotlight despite the crucial role they play in that small coalition.

Labor law jurisprudence is already drastically slanted against workers and their unions, and it will get only worse as Trump’s judges begin to exercise their influence in this sphere. More attention should be placed upon nominating strong worker-rights advocates to counter this inevitable rightward drift in legal doctrine and give labor a fighting chance in the nation’s courtrooms. Biden must be the one to begin this trend.