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Biden Should Nominate Judges Who Battled the Government in Court

Libertarians are sure to be unhappy with plenty of President Joe Biden’s judicial picks. But there is one glimmer of hope on the courtroom front. The Biden team is looking to bring some much-needed professional diversity to the federal bench.

On December 22, incoming White House Counsel Dana Remus asked Democratic lawmakers to start identifying judicial candidates “whose legal experiences have been historically underrepresented on the federal bench,” such as criminal defense lawyers, public defenders, and civil rights litigators. That is welcome news.

As Cato Institute criminal justice scholar Clark Neily pointed out in Slate, there is a “wild imbalance” on the federal bench “between judges who used to represent the government in court and judges who used to challenge the government in court.” Given that “nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice,” Neily wrote, “to further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.”

That is one point on which libertarian and progressive legal activists can agree. “The federal courts have largely become peopled with lawyers who are former prosecutors, which has entirely skewed the lens through which the law is seen,” Sherrilyn Ifill, head of the NAACP Legal Defense and Education Fund, told journalist Anand Giridharadas in December. “Public defenders have essentially been shut out. So I’m not interested in a lot of black prosecutors being appointed to the federal bench….I’m not interested in cosmetic diversity. I’m interested in substantive diversity.”

Joe Biden is not the most promising figure from the standpoint of criminal justice reform. During his long career in politics, he stood out as an inveterate drug warrior and law enforcement booster. But it is never too late to make amends. If Biden is even remotely serious about turning over a new leaf, one positive thing he can do as president is to appoint more judges whose experience includes battling the government in court.

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