Author: Tristin B. Brown
Federal judges, appointed to lifetime positions of immense power, will spend decades ruling on issues touching virtually every aspect of life in the United States. This long-lasting impact each federal judge will have is why so many were alarmed by the Trump Administration’s ruthless commitment to appointing as many far-right judges as possible to the federal bench. In just a single term, the previous administration successfully confirmed 226 newly minted federal judges — many of whom are historically young, and some who were deemed wholly unqualified to serve on the bench by the American Bar Association. Of those 226 judges, 54 were nominated and confirmed to become appellate judges, judges who are likely the final arbiters of legal outcomes.
While there is much to be concerned about when it comes to the quality and quantity of Trump-appointed judges, the composition of the federal judiciary has been troubling for far longer than four years. It has historically been overwhelmingly white and saturated with former prosecutors and BigLaw attorneys who have made careers out of defending corporations and undermining everyday people — trends both Republican and Democratic presidents have contributed to. The magnitude of the problem can hardly be overstated: a 2020 study reported that of all the circuit court judges, only three had served as public defenders and one was a former nonprofit lawyer.
It was thus encouraging to many, particularly in the public interest and civil rights communities, when President Biden’s team made clear they would be prioritizing public interest attorneys when filling judicial vacancies. In a letter sent to Senate Democrats even before the inauguration, White House counsel Dana Remus wrote that, “With respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
President Biden’s first slate of judicial nominations proved promising, with the likes of former federal public defenders Candace Jackson-Akiwumi and Judge Ketanji Brown-Jackson being nominated to serve on the Seventh Circuit and D.C. Circuit Court of Appeals, respectively. The themes of demographic and professional diversity have been repeatedly and rightfully raised by Biden and Democratic senators when discussing the dire need to reshape the federal judiciary.
So, it was both jarring and disappointing to see employer-side attorney Christine O’Hearn nominated to serve as a federal district court judge in New Jersey. In recommending O’Hearn to the White House, Senator Bob Menendez described her as someone who “has spent much of her career advocating for women in the workplace and defending the rights of workers against employee discrimination, harassment, and a hostile work environment.” Her record, however, makes clear how far from the truth this statement is.
According to her firm’s website, “O’Hearn… represents employers in union related matters including matters before the National Relations Labor Board such as petitions for certification, elections, and unfair labor practices as well as collective bargaining negotiations, grievances, and arbitration.” The firm’s website touts that “our attorneys have particular expertise in representing corporate and public entities in both union and non-union settings. We are experienced in defending employers in state and federal courts.” In other words, when workers accuse their employers of illegal treatment on the job, those employers call O’Hearn; when those same employers want to stop their workers from organizing for better workplace conditions, they call O’Hearn. Of all the cases she has litigated, Westlaw analytics suggests that only 18% of those were cases where O’Hearn represented plaintiffs. Far from being an opportunity to fight for the marginalized, most of those plaintiffs were actually corporations bringing lawsuits against employees. And among her publications is an article titled “Assumption Refuted: No Duty to Provide Pregnant Employees with Light Duty,” in which she argues that pregnant employees should not be entitled to any accommodations on the job.
There is no indication that O’Hearn’s firm or personal practice has deviated from actively engaging in busting unions and quashing worker’s rights. Her nomination is therefore antithetical to everything President Biden, a self-proclaimed pro-union president, has committed to bringing to the federal judiciary. It is also directly contrary to what senators like Cory Booker have publicly stood for. In the past, Booker has said, “we’ve got to get back to balancing individual rights against corporate rights. And if there’s any theme that I’m looking [at]… it really has to do with that fundamental ideal.” Yet, he lauded O’Hearn’s nomination and quickly got behind the push to confirm her.
When it comes to the judiciary, it is not enough to start strong and then revert to the status quo. Research shows that attorneys like O’Hearn who become judges are more likely to rule against workers, and are unlikely to use their position to serve as a check on unfettered corporate power in this country. That’s why every nomination matters. Every nomination counts. Every nomination will have real and lasting consequences for everyday people who have no choice but to rely on a judicial system that is anything but reflective of them as they seek legal recourse against employers and corporations that people like Christine O’Hearn have built careers on defending.
The COVID-19 pandemic alone has resulted in 284 lawsuits being filed in just the state of New Jersey against employers for alleged labor and employment violations connected to COVID-19. As the crisis of the last year opens eyes nationwide to the deep inequities in our systems, now is certainly not the time to continue adding management-side attorneys to the federal bench. As everyday people turn to the court system in record numbers to right the wrongs of employers who have used the pandemic to take advantage of workers, now is the time to nominate judges who have a record of fighting for workers, not against them. The state of New Jersey is full of attorneys who have committed their lives and careers to truly serving people, not corporations. These are the attorneys the Biden Administration, Senators Booker and Menendez, and all Democratic senators should be looking to as they seek to fill federal district court judgeships.
The Biden Administration has been diligent in ensuring that their commitment to demographic and professional diversity guides their nominations for circuit court judgeships. But, they must also apply that same standard to federal district court judgeship nominees, even if that means rejecting the recommendation of Senate Democrats who refuse to follow the provided criteria. On the heels of Trump’s devastating judicial footprint, now more than ever, all judicial nominations must be approached with intentionality and care to ensure that our federal judiciary is one that is reflective of all of the people it vows justice to.
Tristin B. Brown is Policy & Program Director at the People’s Parity Project, and former Associate Counsel at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. Tristin earned her J.D. from Georgetown University Law Center.