Last week's Senate Judiciary Committee hearing on Christine OHearn (Joe Bidens nominee for federal judge for New Jersey District) seemed more compelling than any other judicial nominee hearing. OHearn, a labor and employment lawyer with a management side, has been helping employees form unions and defending them against claims of harassment and discrimination. The Democratic Senators would like to point out that President Biden's commitment to nominate federal judges with underrepresented backgrounds, such as civil rights and public defenders, was at odds with the nomination. They should ask OHearns senators from their home states, as well as their Sens. Robert Menendez, Cory Booker and Cory Bucher were puzzled to describe OHearn in a perplexing way as a champion for workers and women rights at the time of the announcement.AdvertisementAdvertisementAdvertisementIt turned out that they wouldn't. Except for a feisty exchange where Sen. Mazie Hirono called Sen. Ted Cruz mansplaining, Wednesday's hearing was ordinary and tensions were not explored. It is likely that OHearns nomination would pass through the Senate without further investigation of her record. Her background suggests that her confirmation will likely contribute to the slow-motion catastrophe that is the federal courts approach workers rights.OHearn has been a typical judicial nominee of presidents from both parties for decades. She is a politically connected lawyer from a large law firm, but she is a surprise for the Biden White House. Biden's White House Counsel Dana Remus sent a letter asking Democratic Senators to nominate potential nominees for judicial offices who are diverse in terms race, ethnicity and gender. Remus stated that the incoming President is particularly interested in nominating people whose legal experience has been historically underrepresented on federal courts. This included those with civil rights, legal aid, public defenders and lawyers who represent Americans from all walks of life.AdvertisementAdvertisementBiden's request for diversity in demographics and experiences was not a spontaneous one. Federal judges are predominantly white and male with criminal prosecutors or corporate lawyers backgrounds. They work for powerful entities, not ordinary people. Trump made the situation worse. His judicial appointees comprised 75 percent of males and 84 percent of whites. The majority had substantial experience representing corporations and none of them had any background as legal aid or public defenders. They were also more homogeneous ideologically because Trump outsourced much of the selection work to the Federalist Society, a right-leaning Federalist Society.In contrast, President Biden's nominees for judicial office have been more diverse in terms both of their identity and their experience representing the less-powerful. All three of his Circuit Court nominees were Black women. Four of his 11 first nominees had been public defenders. His nominee Candace Jackson - Akiwumi was confirmed to the 7th Circuit on Thursday. She has been a public defender in Illinois for more than a decade and is now the only non-white judge on the court.AdvertisementChristine OHearn spent her entire career defending employees against employers. Camden Police was her client against charges of race and age discrimination and retaliation by former employees. She was charged with Atlantic City prosecutor for demoting high-ranking women and giving raises to men, as well as Cooper Health System for a radiology technologist claiming that his termination was due to age discrimination. Her firm calls this union avoidance, or as it is more commonly known, union-busting. She published an article entitled Assumption Refuted. No Duty to Provide Pregnant Workers with Light Duty. In it, she argued that an employee who has a normal, uncomplicated pregnancy is not entitled either to light duty or any other accommodation.AdvertisementAdvertisementMenendez and Booker released a glowing statement when OHearns' nomination was announced. They described her as someone who spent a lot of her career advocating women in the workplace and defending workers against harassment, discrimination and other forms of discrimination. Or, they simply considered the words meaningless puffery. Wednesday's hearing saw OHearn being discussed by both New Jersey senators. Menendez praised her intelligence and temperament. Booker commended her for being true Jersey, but neither of them repeated her claim that she is a champion for workers.AdvertisementOne explanation for the White House's nomination of OHearn and other prosecutors, management-side and corporate attorneys is that the president is not willing to make his own recommendations for judges for district courts. Many senators then outsource the task of selecting and vetting judicial nominees to committees, which are often staffed with lawyers from law firms and prosecutors who have given significant amounts to the senators. These committees can act as an echo chamber and recommend other attorneys, which is not surprising. These insular and sometimes secret groups of lawyers have a disturbing amount power over federal judges who will be elected to the office of president.AdvertisementAdvertisementBiden's nominees for judicial office have not been union-side labor lawyers. This is in addition to the fact that Remuss specifically asked senators for names of civil rights lawyers, public defenders, and legal aid lawyers but not union lawyers, suggesting another explanation for OHearns' nomination. The White House may not consider labor law as important as voting rights, civil rights, or criminal laws. Perhaps it's easier to choose public defenders and legal aid lawyers than to represent workers collectively challenging the status quo.AdvertisementIt would be surprising for the White House not to appoint judges with experience in union-side labor laws, given President Trump's strong statements regarding the importance of workers right to collectively bargain. This would be a grave mistake. Although labor law might seem like a niche field, unions are crucial in reducing income inequality and counteracting the power of large corporations and the ultra-wealthy. They also strengthen democracy. Strong labor movements also help to strengthen other justice movements such as the fight for racial justice and immigrant justice, as well as rights based on gender, gender identity, and sexual orientation.AdvertisementAdvertisementFederal courts are often used by the opposition to the labor movement to attack it. This is often with great success. This week, the Supreme Court overturned a California statute that Cesar Chavez's farmworkers won in a long battle in the 1970s. It allowed union organizers to visit farmland only at certain times and speak with farmworkers. Janus v. AFSCME was a major blow to the public sector labor movement. It prevented public sector unions charging fair share fees for all workers they represent. There are more than 100 cases in federal courts that follow the Janus v. AFSCME decision. These cases seek to undermine public sector unions' ability to function. Every day, courts resolve labor law cases that are of great importance to workers. For example, whether to order the immediate reinstatement or dismissal of a worker who was fired during a strike to organize unions. These cases can be a big deal if labor lawyers are involved as judges.Christine OHearn may be one nominee but the message her nomination sends and the likelihood of her confirmation is alarming. While a bust of Cesar Chaz may be in the Oval Office, if Democratic senators work with the president to appoint federal judge who practice union avoidance law and none who represent the unions, while the courts are busy chipping away on the labor movement's strength, that symbolic value will not be much comfort.
