President Biden’s recent nomination of a Harvard-educated litigation partner from a white-shoe law firm to the U.S. Court of Appeals for the Third Circuit should have been pretty run of the mill, as far as judicial confirmation processes go.
But one aspect of the nominee’s bio has contorted what would likely otherwise have been an uneventful confirmation process into a grotesque spectacle: the nominee, Adeel Mangi, is a Muslim American of Pakistani descent. If confirmed, he would be the first Muslim federal appellate judge in the country.
It started at his confirmation hearings in December 2023, which his young children attended.
“Do you condemn the atrocities of the Hamas terrorists?” Sen. Ted Cruz (R-TX) asked. “Is there any justification for those atrocities?”
“Do you believe that Zionist settler colonialism was a provocation that justified Hamas’ atrocity against Jews in Israel?” demanded Sen. Tom Cotton (R-AR).
Sen. John Kennedy (R-LA) insinuated that Mangi “celebrate[s] 9/11,” rattling off a list of speakers invited to an event organized by Rutgers Law School’s Center for Security, Race and Rights to commemorate the 2001 attacks — which Mangi did not attend, had no apparent role in organizing, and, he said, of which he was not even aware. Mangi had been a member of the center’s advisory board.
When Democrats had the floor, they revisited the topic to give Mangi an opportunity to denounce terrorism and genocide — which he did, repeatedly and unequivocally. But even in their friendly form, the questions left an impression that religious and racial stereotypes had hijacked the hearings.
“Is there any hesitation on your part to condemn genocide?" Peter Welch (D-VT) asked. “Is there any hesitation on your part to condemn any person who commits terrorist activities in violence toward innocent people?”
As the CEO of the National Council of Jewish Women, Sheila Katz, put it: “It was a heartbreaking scene for the first Muslim American federal circuit judicial nominee to face relentless questioning on Israel, terrorism including September 11th, and the Holocaust.”
This treatment is far outside the norm for nominees to the bench. No non-Muslim judicial nominee has been asked whether they condemn the October 7 terrorist attacks by Hamas on Israel, accused of celebrating 9/11, or asked to confirm that they condemn genocide.
Islamophobic questioning is not the only way Mangi’s treatment has departed from the average confirmation process. Republican senators have also given inordinate attention to Mangi’s record of pro bono service. He represented the family of an incarcerated man murdered by a correctional officer and is on the advisory board of Alliance of Families for Justice, a nonprofit that supports families impacted by mass incarceration that has advocated for the release of aging prisoners, including people convicted of killing police officers. The senators used this to say that he has “sympathy for, and association with, some of the most radical elements in society,” including, as Sen. Mitch McConnell (R-KY) put it, “those who support cop killers.”
This twisting of Mangi’s pro bono record to paint him as criminal-adjacent is shocking but not surprising. Diverse nominees — including people of color and women — are routinely grilled on their positions on civil rights and criminal justice more intensively than white men nominated to the bench. One study found that nominees of color like Mangi get more than twice as many questions on criminal justice as white nominees. And nominees with experience in public defense — an essential role in our legal system — face particularly brutal questioning. In recent history, these inquiries have increasingly sounded less like questioning and more like badgering of women and people of color about their public interest work, heavy with insinuation that representing marginalized people makes one unfit for the bench.
This is illustrated in the case of Arianna Freeman, a Biden nominee who became the first Black woman to serve on the Third Circuit Court of Appeals. Referring to her 12 years as a public defender, Cruz told her that she had “devoted [her] entire professional career to representing murderers, to representing rapists, representing child molesters.” He branded her a “zealot” for defending a man on death row — whose sentence the Supreme Court later overturned.
And during confirmation hearings for Justice Ketanji Brown Jackson, Sen. Josh Hawley (R-MO) said that she had a “long record” of letting child pornography offenders “off the hook,” referring to sentences that experts called mainstream. Republicans also criticized Jackson for representing Guantánamo Bay detainees, referring to her “advocacy for these terrorists.”
With Mangi’s hearings, then, senators are yet again issuing bad faith characterizations of the public interest work of a nominee who would increase the diversity of the federal bench. At this point, even if Mangi’s confirmation goes through — which is increasingly doubtful, as three Democrats have announced in recent weeks that they no longer support him — damage will have been done.
Most fundamentally, the bullying of a prominent Muslim American on the national stage tells all our Muslim friends and neighbors that they are second-class citizens. And it comes at a time when hatred is surging: reports of Islamophobia have doubled in recent months, antisemitism incidents have skyrocketed, and hate crimes in general have surged. So it is more important than ever that we take a strong stand against bias and othering of underrepresented groups.
More specifically, Mangi’s treatment sends a message to people of Muslim faith with aspirations for the federal bench: don’t bother, unless you, too, want to be branded as a terrorist-sympathizer — in front of the world and, as in Mangi’s case, your young children. The potential chilling effect on Muslim Americans vying for federal judgeships undermines the legitimacy and effectiveness of the judiciary.
As my colleagues have previously noted, a diverse bench leads to richer jurisprudence. That’s because judges with underrepresented personal and professional experiences bring important and relevant perspectives to the problems in front of them and push back on assumptions that a homogeneous panel might hold. As Justice Sandra Day O’Connor put it, working with Justice Thurgood Marshall, a civil rights lawyer and the first Black justice, sometimes “change[d] the way [she saw] the world.”
On a more basic level, underrepresented communities are more likely to trust a diverse judiciary. This is important because courts derive their legitimacy from the public’s trust in them. “How can the public have confidence and trust in such an institution if it is segregated — if the communities it is supposed to protect are excluded from its ranks?” federal district court Judge Edward Chen once pondered.
Finally, the negative focus on Mangi’s pro bono record — especially on the heels of other hearings in which nominees have been disparaged for public interest work — casts that work in exactly the wrong light. Pro bono work should not be a political liability. To the contrary, it is the ethical obligation of every attorney to provide legal services to those who cannot afford them. And justice depends on it.
When someone loses a lawsuit, it is frequently not because their claim was meritless, but simply because they did not have a lawyer. In immigration removal hearings, for example, unaccompanied children without lawyers prevail only 15 percent of the time. By contrast, 73 percent unaccompanied children with representation are allowed to remain in this country.
But, according to one study, in a whopping 92 percent of civil matters — from eviction to police brutality to discrimination — low-income Americans could not find legal representation. Pro bono practice by corporate lawyers like Mangi is crucial to filling the access to justice gap. We should be encouraging pro bono work, not giving talented young attorneys who dream of becoming judges a reason to avoid it.
Mangi’s confirmation process has been a blueprint for how not to treat a nominee for the federal bench. His hearing — and the subsequent campaign against him — has undermined our shared values of equality, inclusivity, and justice. We must do better.
