Some members of the legal community are expressing concern about the decision of Colorado’s U.S. senators to recommend a former prosecutor and current corporate attorney to fill a federal judicial vacancy, after the Biden administration had previously requested candidates from “historically underrepresented” legal experiences.
On Wednesday, U.S. Sens. Michael Bennet and John Hickenlooper announced that Regina M. Rodriguez was their recommended candidate to be a judge on the U.S. District Court for Colorado. Rodriguez was previously President Barack Obama’s choice to fill a 2016 open seat on the seven-member trial court, but the Republican-controlled U.S. Senate did not act on her nomination. At the time, Bennet and Colorado's Republican senator, Cory Gardner, supported her nomination.
The Biden transition had notified senators in a December 22 letter what the incoming president’s expectations were for recommending judicial nominees.
“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,” wrote Dana Remus, now the White House counsel to President Joe Biden.
Christopher Kang, who spent nearly seven years in the Obama administration as counsel and assistant to the president, was perplexed that the sole judicial candidate Colorado’s senators submitted to the White House is a former Assistant U.S. Attorney who now specializes in corporate regulatory compliance with the international law firm WilmerHale.
“There’s no question that both corporate lawyers and prosecutors are overwhelmingly overrepresented on our courts,” he said. “I think that is why Ms. Remus was very clear that the president would like to restore some balance.”
Kang, who is chief counsel at the progressive advocacy organization Demand Justice, does not know Rodriguez personally and said his comments were based entirely on the incoming president’s directive. During his time in the Obama White House, he recalled negotiating over judicial candidates and asking senators “to try again.”
“I hope that they take another look and really canvass the breadth of Colorado’s legal community,” Kang added, to recommend someone “who is more in line with the kind of judge that President Biden has said that he’d nominate. I think there’s still an opportunity to do that.”
A 2017 report from the Congressional Research Service found that at the time of their appointment, 35% of federal trial court judges worked in private practice. Approximately 1.4% were public defenders, although the analysis did not look into how appointees spent the duration of their legal careers. The Center for American Progress, by contrast, reported that only 1% of federal appellate judges worked mostly as public defenders or in legal aid throughout their careers.
Former Rep. Joe Salazar, D-Thornton, who is weighing a progressive primary challenge to Bennet in the 2022 U.S. Senate election, indicated that the senators’ choice of nominee implied to him that social justice reform or civil rights were “not a top priority.”
“I appreciate that their selection is Latina, but corporate attorneys are not on President Biden's priority list,” Salazar said.
Through the tradition of “senatorial courtesy,” senators are allowed to weigh in on certain presidential nominations from their home states. Bennet and Hickenlooper also sent their preferred choices to the White House for the U.S. Attorney and U.S. Marshal positions.
Although Remus in her December letter asked for three names for each post, Colorado’s senators publicly recommended Rodriguez alone.
Salazar named more than half a dozen other lawyers and judges in the state whom he thought should be considered. One of those, employment discrimination and LGBTQ rights lawyer Paula Greisen, said she had not applied for the vacancy and believes Rodriguez will be an excellent judge.
“Our court system should reflect the people of our country and instead, it reflects primarily white privilege,” she explained. “But above all else, our judges should be selected based on their integrity and values. I know Regina Rodriguez is smart, dedicated and committed to the constitution and civil rights.”
A spokesperson for Bennet, responding to the question of whether the senators considered Remus's guidance, listed Rodriguez's volunteer work in the community, her pro bono efforts, and said she is "an extremely qualified lawyer with a deep commitment to justice, fairness and community service. She is a Latina who grew up in Colorado and was the first one in her family to attend and graduate from law school."
"We expect swift confirmation should she be formally nominated by President Biden," added a Hickenlooper spokesperson.
Another attorney Salazar mentioned, Leonard Martinez, who is a civil litigator and personal injury attorney with The Denver Legal Team, similarly believed Rodriguez was well-qualified but echoed the sentiment about diversity of legal backgrounds.
“It would be nice to get somebody in there that has a little different of an experience that is more on the criminal defendant’s side,” he said. Even on the state level, “every time you see these judges appointed, it's district attorneys, U.S. Attorneys — a prosecutor type of attorney nominated or a corporate lawyer.”
Martinez continued that he would be willing to consult with Colorado’s senators on future court vacancies, should they desire it.