President Biden and the Democrat-led Senate have moved quickly to boost minority and female representation on the federal courts following Donald Trump’s four-year push to remake the judiciary, in which he nominated a large share of White, male justices.
Biden’s early judicial slate represents a departure from his recent predecessors; his initial picks are more diverse, and Biden rolled out more nominations earlier in his presidency than others.
Fifteen of his 19 nominees so far are women, including 11 women from diverse racial and ethnic backgrounds. The Senate is expected to vote on the nomination of U.S. District Judge Ketanji Brown Jackson — widely considered a Supreme Court contender — to the influential U.S. Court of Appeals for the D.C. Circuit on Monday. Additionally, it gave final approval to Zahid Quraishi, a magistrate judge from New Jersey and the first Muslim confirmed as a federal judge, in a bipartisan vote on Thursday.
“This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession,” Biden said in a statement when announcing the nominees. “Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong.”
In his first four months, Biden nominated as many minority women to the federal bench as Trump had confirmed in his entire four years. A Washington Post analysis of Federal Judicial Center data shows all women, regardless of race or ethnicity, are underrepresented on the judiciary.
Share of active federal judges by race and ethnicity
“I’m not talking about a one-to-one ratio, but we need not only racial, ethnic and gender diversity, but also experiential diversity,” said Judge Bernice B. Donald of the U.S. Court of Appeals for the 6th Circuit, who made history in 1988 when she became the first Black woman to be a bankruptcy judge.
As part of his call for a more diverse judiciary, Biden pledged to name the first Black woman to the Supreme Court. Justice Sonia Sotomayor is the only Latina and woman of color to serve on the high court thus far. Yet, in lower federal courts, the share of Hispanic judges remains far behind the share of Hispanic-identifying people in the United States.
There is a lot of work to be done to reduce that gap, according to Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. “It is not enough” that only three nominees out of 19 are Latinos, Saenz said. “It’s not a problem that they created, but they have an opportunity to fix it.”
Slow progress boosted by Obama and stalled by Trump
Forty-eight women from diverse racial or ethnic backgrounds became federal judges during Barack Obama’s two terms, compared with 21 each in George W. Bush’s and Bill Clinton’s presidencies. His progress stalled when Republicans took back the Senate in 2014 and blocked dozens of judicial nominees, including two who were nominated by Biden and confirmed last week. Following Republican Senate obstruction, Trump came into office with more than 100 vacancies to fill.
“Women of color are more severely impacted, because they sit at the intersection of racism and sexism,” said Stacy Hawkins, professor of law at Rutgers Law School.
Diversity of federal judges by president
“Trump was the first president to reverse the historic course and to have a less diverse judiciary than his political predecessors,” Hawkins said. The former president did “significant damage” to the composition of the federal bench, she said, because his lifetime-appointed judges, mostly White men, were younger on average than his predecessors’ appointees.
Trump did nominate a slightly higher share of female judges than Bush did: 24 percent compared with 22 percent.
Less diversity on impactful appeals courts
The Post analysis reveals that racial and gender diversity are lower in the appellate courts compared with lower-level district courts.
Women from diverse racial or ethnic backgrounds account for 10.9 percent of the active judges in the district courts, but only 6.4 percent of active judges in the appellate courts, one step below the Supreme Court.
Nominees would increase representation on U.S. courts of appeals
Biden’s nominations to the appellate courts would reduce the gender and racial gaps in some of the circuits. Gustavo Gelpí will be the only Latino judge in the 1st Circuit that oversees Puerto Rico in addition to New England if the Senate confirms him. If confirmed, Eunice C. Lee and Candace Jackson-Akiwumi would be the only minority women in the 2nd and the 7th circuits, respectively.
Yet, new seats free up in the circuits for Biden to fill. More than three decades after she entered the federal judiciary, Donald, who is the only woman of color on the 6th Circuit, announced that she will take senior status once her seat is filled by Biden. “I embraced the job fully with competence and energy, so that in becoming first, I would make sure that I wouldn’t be a last on the job,” Donald said.
Cheri Beasley, the former chief justice of the North Carolina Supreme Court who was first Black woman to serve in that role and a U.S. Senate candidate for that state, said diversity on courts can lead to more trust in the institution.
“It really does import a sense of trust and confidence when the judiciary makeup is reflective of the demographics of the state,” she said.
Beasley is another judge mentioned as one of Biden’s potential contenders for the Supreme Court. “I certainly have been very honored to be mentioned for consideration as a Supreme Court nominee. At this point, I am really focused on my U.S. Senate run,” she said.
According to data collected by the Brennan Center for Justice, state Supreme Courts also don’t reflect an increasingly diverse population. Women account for only 39 percent of state Supreme Court justices. Latinas and women of color are only 8 percent.
“State judiciaries are one of the pipelines to the federal bench,” said Alicia Bannon, managing director of the center’s Democracy Program. “And the fact that there is not a tremendous amount of diversity on the state benches can also be one challenge in bringing greater diversity to the federal bench.”
As of today, there is no state Supreme Court justice identifying with a racial or ethnic minority in 22 states. Ten states have not had any Hispanic or person of color as a judge since at least 1960, when data collection began: Alaska, Kansas, Maine, Nebraska, New Hampshire, North Dakota, South Dakota, Utah, Vermont and Wyoming.