Biden also deserves praise for improving diversity on the federal bench. More than 76% of Biden appointees are women (including the first black woman to serve as a Supreme Court justice), compared to about 42% of Barack Obama appointees and just 24% of Donald Trump appointees.
Even more amazing, while 68% of Obama’s judges and 84% of Trump’s were white, this is only true of 32% of Biden’s judges as of July 1. When it comes to black justices, Biden (28%) surpasses Obama (18%) and underscores Trump’s abysmal record (less than 4%). The same goes for Biden’s record of appointing Hispanic and Asian American judges. Overall, about 65% of Biden’s nominees are people of color.
To put that into perspective, Trump did not appoint any black justices to the Supreme Court or circuit courts out of 56 nominations. Wasn’t there a single black person acceptable to the Trump administration? It’s hard to believe merit ranks high on Trump’s list of criteria, given the slew of totally unqualified white candidates he’s put forward.
Biden has also named about 30 former public defenders, far more than any other president. Indeed, Ketanji Brown Jackson is the only Supreme Court judge for working as a public defender.
Despite Biden’s record, the federal bench as a whole remains woefully weak in terms of diversity. A recent report by the American Bar Association found, for example, that “of the 1,088 judges serving in federal district courts, there were 48 black women as of July 1, 2022. This represents only 4.4% of all district court judges. California had six black female district court judges, while Illinois and New York each had four. In 27 states, there is not a single black woman on the federal bench. It’s worse at the circuit court level, where only 3.4 percent of appeals court judges are black women. “Six circuit courts had none,” the ABA report found.
As the report makes clear, the justice system is so overwhelmingly male and white that it will take decades to achieve anything close to an accurate reflection of the country. Thanks to Biden’s efforts, “the percentage of black people on the federal bench has increased slightly — from 9.5% in 2020 to 11% in 2022. . . . Meanwhile, 7.7% of federal judges in 2022 were Hispanic — up slightly from 6.5% in 2020.” Meanwhile, less than 4% of federal judges are Asian American (a slight increase under Biden) and no Asian Americans have been appointed to the Supreme Court. And the gender balance resembles the American workforce in 1960: “The percentage of female federal judges has fallen from 27% in 2020 to 30% in 2022.”
One takeaway from these statistics: diversity is one of the many good reasons for expanding the federal bench. As Bloomberg Law reports, “Despite years of requests, the last time Congress gave the judiciary a full allotment of new seats was in 1990, when it added 72 district court and district court seats. “permanent appellate and 13 temporary trial court seats. Since that 1990 measure, the number of district court cases reported through the court system has increased by 47 percent.” Thus, the expansion of the Federal Court could be equally important to ensure the effective functioning of the judicial system in addition to efforts to open up niches for various candidates.
Moreover, the current Supreme Court is increasingly hostile to the right to vote and indifferent or hostile to the fundamental rights of women. During the next mandate, positive discrimination in higher education is also likely to be threatened. And the court’s Christian nationalist bent has become more evident in matters of religion. Thus, diversity of background, race, religion and gender in lower courts becomes even more important in stopping the marginalization of disadvantaged groups.
The progressive Brennan Center argues that “diversity in judicial selection has a normative dimension: in a democracy, the judiciary should reflect the public it serves.” There is evidence that the presence of black judges “increased the perception among black Americans that the courts were legitimate.”
A varied lived experience among judges can help minimize damage from the high court. It could even broaden the prospect of a radical majority on the Supreme Court that is still disproportionately white and male and blinded by its narrow theocratic outlook.