Should a Corporate Lawyer Become a Biden Federal Judge? 1

What happens when a simple litmus test collides with a more complicated reality? Colorado attorney Regina Rodriguez checks a lot of boxes that Democrats value. She’s the daughter of a Mexican American father and a Japanese American mother whose family was interred during World War II. She was also nominated to the federal bench in 2016 by Barack Obama—and denied a hearing by Mitch McConnell. It’s a personal story that once would have trumped everything in Democratic politics.

But today, progressives are fighting hard to stop Joe Biden from re-nominating her. Why? Because she’s now a partner in a major corporate law firm, Wilmer Hale, that on its website cites its close relationship with regulated industries. And in 2006 she represented McDonald’s in an anti-discrimination lawsuit.

So now, in the battle for the soul of the judiciary after four years of Donald Trump, Rodriguez, even with her compelling story and stellar pro bono community work, is an early example of the new litmus-test politics of the left.

No corporate lawyers need apply. But are they all bad?

Colorado Democratic Senator Michael Bennet, saying he is trying “to right a wrong,” is pushing Rodriguez and has not backed down from supporting her. He openly defied a letter from White House Counsel Dana Remus in December asking Democratic senators to help the White House move quickly on judges by submitting three candidates for circuit and district court vacancies. Bennet listed only one: Rodriguez.

“He went out of his way not to follow the president’s directive,” says Christopher Kang with Demand Justice, a progressive advocacy group. “It’s not about her personally, but a lot has happened in the last five years. If there were a Supreme Court vacancy open today, we wouldn’t expect President Biden to nominate Merrick Garland to right a wrong.”

Kang oversaw judicial nominations in the Obama White House, and he repeatedly says his opposition to Rodriguez is not about her, it’s about elevating civil rights lawyers and public defenders. Lawyers like Rodriguez, who was a former assistant U.S. attorney, are “wildly overrepresented” in federal courts. “We have a Democratic Senate now and we’re not trying to find a nominee for a Senate Mitch McConnell controls,” Kang says. “She doesn’t meet the moment.”

For the record, Rodriguez is highly qualified, with a long track record of community service to Colorado’s children and working families. She’s on the boards of early Head Start, Colorado Youths at Risk, and Open Door Youth Gang Alternatives. In 2016, she represented four children detained at the border and released to a family in Colorado, according to Bennet’s office. “Yes, she works for a private law firm, but she does so much else,” a spokesperson for the senator told the Daily Beast, pointing out also that Rodriguez was the first in her family to go to college, attending the University of Iowa, and then the University of Colorado for law school.

Her representation of McDonald’s has drawn attention and legitimate criticism. The case centered on an African American woman with four children who after alleging racial discrimination at a McDonald’s drive-through was subjected to abusive language from a supervisor before driving to a second McDonald’s where she was offered free food to compensate, which she refused. The civil case was resolved with a summary judgment in McDonald’s favor, and the complaints of intentional racial discrimination were dismissed.

The White House is very aware that President Obama sent his first judicial nomination to the Senate on March 17, and President Trump on March 21, and they want to be able to say they’re on par with previous administrations. “They’re trying to move quickly, and we all have March 17 in mind,” says Kang. Obama sent a single nomination, David Hamilton for the Seventh Circuit, and it took until November, six months, for McConnell’s Senate to confirm Hamilton, a District Court judge who had the enthusiastic backing of Indiana’s then senior senator, Republican Richard Lugar.

The betting is that Biden will send an initial slate of names to the Senate for confirmation that will include a replacement for Merrick Garland on the D.C. Court of Appeals. District Court Judge Ketanji Brown Jackson, appointed by Obama and confirmed in 2013, is likely to get the nod and would then be positioned for the Supreme Court, fulfilling Biden’s promise to name a Black woman to the Court.

According to the advocacy group Alliance for Justice, if you count judges who have signaled their retirement by June, there are 10 vacancies on the Courts of Appeals and 78 on the District Courts. “There’s a lot of opportunity,” says Daniel Goldberg, the group’s legal director. “I’d be shocked if Garland’s seat is not there (on the first slate).”

“Their real target is not Rodriguez, the real target is the Democratic Senate caucus.”

Will Regina Rodriguez make the cut? The argument is very real and very raw, as newly empowered Democrats confront a new and painful conflict between racial and ethnic identity and Biden’s call for professional diversity in the judiciary. Robert Raben, who chairs the endorsement committee of the National Hispanic Bar Association and who served as an assistant attorney general during the Clinton administration, strongly backs Rodiguez in what he characterizes as a family fight on the Democratic left. He sees her as a worthy nominee who got caught up in the obstructionist politics following Merrick Garland’s nomination. “She is in a tiny cohort of people who were robbed of their possibilities over an issue that had nothing to do with them,” he told the Daily Beast.

“I support Demand Justice,” he continued. “I helped Brian Fallon (co-founder) set it up. We’re a tight family on the left and the issue they’re pushing is absolutely right, but the target they started with is off point. Their real target is not Rodriguez, the real target is the Democratic Senate caucus.”

Raben contends that it is highly unusual for a Latina to move up the ranks of law the way Rodriguez did, getting named in 2013 National Hispanic Bar Association lawyer of the year. “She played by all the rules,” he says. Now progressives are changing the rules. “They’re sending a message to Democratic senators and the White House that they want a much more professionally diverse crew—and younger. I agree with their principles, but I don’t agree with every implementation of it.”

The federal judiciary is much whiter and too male to be representative and achieving professional diversity can sometimes be at odds with ethnic diversity. “If you’re on the left and you go after a candidate who’s African American, generally you lose—the left loses—because the historic exclusion of people of color is so powerful,” says Raben. He recalls a fractious debate during the early Obama years mounted by the left over a Hispanic judge now sitting on the Fourth Circuit who had once done an amicus brief for Philip Morris, the tobacco giant.

It’s now up to the White House whether Rodriguez’ nomination is forwarded to the Senate. Raben says he is “very confident she will be nominated and confirmed.” And with dozens of vacancies looming, it’s likely that Demand Justice has made its point, and that Biden will send to the Senate qualified nominees that bring ethnic and professional diversity, recognizing that these twin goals, however laudable, are sometimes in conflict.