Weeks before President Joe Biden’s inauguration, his transition team asked its allies in the U.S. Senate for their help with a “critically important” task: selecting nominees for U.S. District Court vacancies.
In a letter to senators, incoming White House counsel Dana Remus stressed that the Biden administration was especially interested in candidates whose backgrounds haven’t traditionally been well-represented among federal judges, including public defenders and civil rights attorneys. She asked senators to recommend at least three candidates for each position.
But in a joint letter to Biden and Remus on Feb. 3, Colorado Sens. Michael Bennet and John Hickenlooper had only one name to recommend for Colorado’s vacant district court seat: Regina Rodriguez, a Denver attorney who was previously nominated for a seat on the same court by former President Barack Obama in 2014.
An accomplished Denver litigator and former assistant U.S. attorney, Rodriguez is currently a partner and co-chair of the trial practice at corporate law and lobbying giant WilmerHale. And that resume — long considered an uncontroversial one for federal judicial nominees — alarmed progressive reform advocates who are eager to see Biden quickly shift the courts in a bold new direction after four years of lifetime appointments made by former President Donald Trump.
“President Biden has made clear that he wants to have a different kind of judge nominated,” Chris Kang, a former Obama administration official and co-founder of advocacy group Demand Justice, told Newsline in an interview. “And yet Sen. Bennet, in his first recommendation, has recommended somebody who does not fit that mold, who is very much in the old frame of a corporate lawyer. That’s not what President Biden has asked for, and it’s not what our courts need right now.”
In a digital ad campaign launched this week, Demand Justice accuses Bennet of “standing in the way” of Biden’s efforts to rebalance the courts.
“Tell Sen. Bennet: Support President Biden, not corporate lawyers,” the group’s ad urges viewers.
Presidents frequently rely on senators’ recommendations to nominate judges to district courts, the first and lowest level in the federal court system. Rodriguez was first recommended for a seat on Colorado’s District Court in 2015, after a bipartisan advisory committee convened by Bennet selected her as one of three possible candidates for a vacancy. Despite having bipartisan support, including from former Republican Sen. Cory Gardner, her nomination stalled in the GOP-controlled Senate.
Righting that wrong, a Bennet spokesperson explained, was in part what led Bennet to make Rodriguez his sole recommendation for the court’s latest open seat. Rodriguez did not respond to a request for comment.
“It is disappointing that an out-of-state dark money group is attacking Regina Rodriguez’s recommendation to the U.S. District Court,” a Bennet spokesperson wrote in an email. “She is an incredibly qualified Latina candidate who would bring diversity to the federal bench. She also has a long track record of community service to Colorado’s children and working families.”
Growing scrutiny of corporate law
Advocates of court reform cheered the news late last year that the Biden administration would seek to prioritize judicial nominees with public-interest legal backgrounds.
“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,” Remus wrote to senators in her Dec. 22 letter.
The rift between Bennet and progressive advocates over Rodriguez’s recommendation comes amid growing scrutiny of the role that high-powered corporate law firms like WilmerHale — known within the legal profession as “Big Law” firms — play in the nation’s justice system. In 2019, Demand Justice joined other advocacy groups, including Indivisible and MoveOn, to launch a campaign demanding “no more corporate judges.”
“We’ve evolved to this point where being a lawyer at a big corporate law firm is viewed as being morally neutral,” Kang said. “But when you look at the kind of cases people handle — if you spend your entire career on one side of the aisle, and have only defended corporations, then your perspective may be influenced when you get to be a judge.”
Often ranked as one of the top law firms in the world, Washington-based WilmerHale counts among its partners a host of well-connected Beltway veterans, including former FBI director Robert Mueller and Bennet’s predecessor, former Colorado Senator and Interior Secretary Ken Salazar, who helped found the firm’s Denver office shortly after leaving Obama’s cabinet in 2013.
WilmerHale’s long list of clients features many of the country’s largest corporations, including Apple, Facebook, Goldman Sachs and Citigroup, as well as some of its most controversial, including Purdue Pharma and Sinclair Broadcast Group, according to news reports and lobbying disclosures. Salazar is co-chair of the firm’s energy and natural resources practice, representing “major national and Colorado-based energy clients,” according to the firm’s website; in 2017, he represented Anadarko Petroleum following a fatal home explosion linked to an oil and gas facility in Firestone.
Rodriguez joined WilmerHale in 2019, and was previously a partner at two other large national law firms, Hogan Lovells and Faegre Drinker Biddle & Reath, after leaving the U.S. attorney’s office in Colorado in 2002. As a trial lawyer, her clients have included pharmaceutical companies like Eli Lilly and Bristol-Meyers Squibb, whom she defended in multiple lawsuits alleging misleading advertising campaigns, according to court records.
“Certainly, you can be a former corporate lawyer and be a progressive judge,” Kang said. But with a finite number of opportunities afforded to presidents to shape the federal judiciary through lifetime appointments, advocates would be disappointed to see one of Biden’s earliest court appointments fail to break the corporate-law mold.
Daniel Nichanian, a criminal-justice commentator and editorial director of The Appeal: Political Report, wrote on Twitter of the controversy over Rodriguez’s recommendation: “There’s been a routine path in how people become judges regardless of parties — prosecutors, big firms — that Biden’s team has pledged to disrupt by going to more civil rights and public interest lawyers. But it’ll take many (people) to tango, including senators.”
Emphasis on diversity
During his four years in office, Trump and his Republican allies in the Senate appointed and confirmed a total of 226 federal judges, including 174 district court judges, an unusually high number for a single presidential term. Trump’s appointees were the least diverse crop of judges seated on the federal bench in decades — more than three-quarters of them were men, and 85% of them were white, according to one analysis.
Reversing that trend is a top priority for many Democrats, and Rodriguez’s defenders say that as a woman of color, her personal background would be far more relevant to her work as a judge than her professional record. She comes highly recommended from many in Colorado’s legal establishment, who point to her long track record of community advocacy.
“I really do believe that a person’s biography is far more important than their employment, and this could not be more true for Regina,” Denise Maes, public policy director for the ACLU of Colorado and a former Obama White House official, told Newsline in an interview, specifying that she was speaking in her personal capacity. “She has done so much in the community, and her profile brings great perspective, and great diversity, to the court.”
In a letter to Biden, a copy of which was provided by Bennet’s office, current and past presidents of the Colorado Hispanic Bar Association praised Rodriguez’s pro bono work, including representation of undocumented immigrants facing deportation and her role in a 2011 lawsuit to ensure fair representation for Latinos a new congressional district map.
“While she has not been a public defender or plaintiffs’ lawyer, she certainly has fought for civil rights, voting rights and defendants’ rights,” the letter reads.
Rodriguez’s recommendation has also drawn pushback from some progressives in Colorado’s legal community, including from attorney and former State Rep. Joe Salazar, who told Colorado Politics that the nod showed that civil rights were “not a top priority.” Salazar is reportedly mulling a 2022 Democratic primary bid against Bennet.
Kang says that it’s a false choice to pit racial and gender diversity in court appointments against diversity in legal backgrounds.
“There are a lot of women of color from a public-interest background, whether they’re civil rights lawyers or labor lawyers,” Kang said. “In fact, given how few women of color become partners at corporate law firms, I would argue that you are more likely to find diversity looking beyond these traditional places and looking more to public defenders, and civil rights lawyers, and plaintiffs’ lawyers, where they’re really serving the public interest.”
Maes, however, argues that women of color face a different set of choices in their careers, and often need to follow a certain path in order “to even be considered for these types of appointments.”
“I do think there needs to be emphasis on not (appointing) the cookie-cutter white male corporate lawyer. I totally agree with that,” Maes added. “I can support Regina because she might be a corporate lawyer, not a public defender or a civil-rights lawyer, but I also believe that her unique background gives a perspective that’s very distinguishable from that cookie-cutter mold.”
Editor’s note: This story has been updated to reflect that criticism of Bennet’s recommendation of Rodriguez has come from some local progressives as well as the national group Demand Justice. It has also been updated to clarify that Denise Maes was speaking in her personal capacity.