I was having a bowl of menudo yesterday and thinking about Elizabeth Warren. Not so odd a juxtaposition — chowing down the communal Mexican ‘breakfast of champions’ while chewing on the Massachusetts Senator who champions populist economics and battles predatory financial institutions.
Menudo — the spicy traditional Mexican soup of honeycomb beef tripe in a red chili pepper broth base, garnished with lime, crushed oregano, chopped onions and cilantro doesn’t suit everyone’s taste. And neither does Elizabeth Warren.
But I like both. A year ago I cheered when the former lawyer and Harvard law professor took down our nation’s weak-kneed financial regulators for their shameful timidity. When Elizabeth makes news, I pay attention.
A speech she gave last week criticizing the “striking lack of diversity” on the federal bench prompted my menudo musings about Elizabeth. She called for more “professional diversity” and decried the continued trend of “corporate judges” who keep getting nominated to the federal bench.
Her speech echoed the points made by an Alliance for Justice report that the federal judiciary lacks judges “with experience (a) working for public interest organizations; (b) as public defenders or indigent criminal defense attorneys; and (c) representing individual clients—like employees or consumers or personal injury plaintiffs—in private practice.” According to the Alliance, 85 percent of Obama’s nominees have either been corporate lawyer types or prosecutors and sometimes, both.
Preaching to the converted, she told her Alliance for Justice audience that President Obama’s federal bench nominees ought to “have represented people other than corporate clients.” Few have been public interest lawyers, labor lawyers, criminal defense lawyers, solo practitioners, or plaintiff’s trial lawyers.
The obvious implication is that once on the federal bench, by dint of their narrow work backgrounds exclusively representing “corporate interests” and their homogenous sociocultural experiences, the judges nominated will supposedly be more favorably predisposed to a conservative political world view. Warren and the Alliance suggest that the federal bench is stacked against the less powerful and weighted instead toward wealthy and politically conservative, pro-corporate special interests.
The reality, however, is that federal judicial nominees are chosen not so much because of their work experience but out of the mixed bag of political ideology; personal loyalty; party affiliation; their Senate confirmation potential; race, gender and judicial experience. And more often than not, candidates for appellate nominations also come from a state’s respective U.S. Senators. And those politicos have their own crony-bag of personal, ideological and politically connected favorites.
And speaking of political ideology and party affiliation, as I riffed a while back, the irony is that life tenure for federal judges supposedly keeps them independent from those concerns. Canon 5 of the Code of Conduct for United States Judges even says as much, “A judge should refrain from political activity.”
Along with the myth about George Washington and the cherry tree and Lady Godiva’s naked ride through Coventry, it’s simple mythology like the one perpetuated of “Judges as Umpires.” The most famous proponent of that unfortunate baseball metaphor remains U.S. Supreme Court Chief Justice John Roberts.
In his book, “The Persistence of the Color Line,” lawyer and professor Randall Kennedy opines, “Roberts’ performance as a justice belies his claim. He is, as Professor Professor Christopher Eisgruber notes, “an odd sort of umpire” – – one who consistently calls the key pitches the conservatives’ way.”
But rather than baseball metaphors, it’s really more a cat-and-mouse game. Judicial nominees neuter their political and ideological persuasions while the rest of us try to ferret them out.
Any wonder then, that to futilely shield themselves from bare-knuckled partisan confirmation battles and win the lifetime-tenure prize, nominees parse, dance, glide and dodge their political backgrounds? Suddenly, they are all political agnostics. And about as crystal clear as a bowl of menudo. See “One Fourth Of Federal Judicial Nominees Did Not Answer Party Membership Question.”
Photo Credits: Menudo, a typical Mexican soup made with tripe, hominy, and chile, by Ron habla hispana at Wikimedia Commons, under the Creative Commons Attribution-Share Alike 3.0 Unported license; Elizabeth Warren at a campaign rally in Auburn, Mass, Nov 2, 2012, by Twp at Wikipedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license; George Washington as a boy and the cherry tree, at Wikimedia Commons, lithograph engraved in 1867 by John C. McRae after a painting by G. G. White, public domain; Lady Godiva, by Jules Joseph Lefebvre at Wikimedia Commons, public domain.