Biden’s Judicial Nominees Highlight Conflict Between Progressives, Civil Rights Groups

President Joe Biden’s first wave of judicial nominees shows the challenge he will face appeasing both civil rights groups hoping to racially diversify the bench and progressives who want to recruit judges from outside the legal mainstream.

Biden promised to nominate a diverse array of judges on the campaign trail, but competing Democratic factions put emphasis on different kinds of diversity. Civil rights groups expect Biden to put forward a racially diverse slate of appointments after a steady clip of white nominees during the Trump administration, while progressives want nominees with varied professional experience, like legal aid or nonprofit lawyers. 

Biden’s first nominees show these goals are in tension. Several nominees of color put forth by the president Tuesday have the corporate and prosecutorial experience progressives want to purge from the bench. While their confirmations would add diversity to the bench, they are also part and parcel of the legal elite progressives hope to dismantle. How the administration deals with that tension helps reveal whether Biden will push for genuine ideological change or stick with conventional coalition politics. 

Labor unions and leftwing advocacy groups worry that typical candidates for judgeships make the courts too friendly to the government and big corporations. A 2020 study from the Center for American Progress found that about two-thirds of active federal appeals judges came from private practice, while practically none spent their pre-judicial careers as legal aid lawyers or attorneys for nonprofit organizations.

Several of Tuesday’s minority nominees fall into the first category. Tiffany Cunningham, tapped for a seat on an appeals court that deals with patent and trademark issues, has spent her career at elite law firms representing entrepreneurs and multinational corporations in patent and trade secrets cases. Zahid Quraishi, nominated for a trial court judgeship in New Jersey, was a federal prosecutor before entering private practice.

Neither nominee is likely to win praise from progressive groups. But both help Biden fulfill his promise to diversify the courts. Cunningham is black, and Quraishi would be the first Muslim confirmed to the bench. 

Brian Fallon, executive director of the leftwing judicial group Demand Justice, expressed disappointment with several of Biden’s first selections. He faulted senators for failing to put forward prospective nominees with ties to civil rights groups and organized labor.

"Ideally all the nominees in this first wave would come from these kinds of underrepresented professional backgrounds. But old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors for federal judgeships," Fallon said. "We know Biden’s stated preference for civil rights lawyers and labor lawyers for district courts is only as good as the buy-in it generates among home-state senators."