While judges are required to be impartial, the impact of politics on the judicial branch can’t be ignored. That’s according to a panel of speakers hosted by the American Bar Association to discuss diversity on the federal bench after the release of the 2022 Profile of the Legal Profession.
Kimberly Atkins Stohr, a former litigation attorney and journalist, moderated the virtual July 28 panel which featured Russell Wheeler, an adjunct law professor and member of the Institute for the Advancement of the American Legal System’s board of advisors, Benes Aldana, a former U.S. military chief trial judge and the president of the National Judicial College, Robert Saunooke, an attorney, Eastern Band of Cherokee Indians citizen and part of numerous Native American affinity bar organizations, and Tomiko Brown-Nagin, a legal historian and the dean of Harvard Law School’s Radcliffe Institute.
The panel focused on diversity among the country’s 1,409 Article III federal judges. While Pres. Joe Biden has nominated the most diverse cohort of federal judges in history; the bench looks remarkably different from the rest of the country according to the ABA’s latest report.
As of July 1, 78.4% of the U.S.’s federal judges are white and 70% are men, compared to 59.3% and 50%, respectively, of the general population. Across the board, people of color are underrepresented on the federal bench, but certain races and ethnicities are particularly marginalized, the report found. Hispanic judges made up only 7.7% of U.S. federal judges despite accounting for 18.9% of the U.S. population. Black and Asian American judges were also underrepresented, making up 11% and 3.8% of the bench respectively, despite accounting for 13.6% and 6.1% of the population.
But since he took office in 2021, the president has made strides to nominate diverse judges with women making up 77% of the nominees and people of color accounting for 65%. So far, 68 of Biden’s nominees have been confirmed including Justice Ketanji Brown Jackson, the first Black woman to be sworn into the U.S. Supreme Court on June 30.
The panel focused on whether the growing number of diverse judges will continue. The panel predicted that Biden’s future picks for federal judges will likely be diverse, but they were unsure if many of the nominees will be confirmed if Democrats lose control of the Senate this fall.
“Biden’s effect on the judiciary in his first two years is going to depend on how many of those [judicial] nominations get confirmed. I can assure you not all of them will be confirmed or what the number will be,” said Wheeler.
Brown-Nagin added that political impact on judicial nominations isn’t new and pointed to the case of Constance Baker Motley, who Brown-Nagin wrote a biography about. Motley became the first Black woman to ever be a federal judge in 1966 and her nomination generated political pushback from both segregationists and the New York City legal establishment which included claims she was a Communist and questions about if she could truly be an impartial judge given her background in civil rights law. Although she was affirmed to the U.S. District Court for the Southern District of New York, Motley was not affirmed to the 2nd Circuit Court of Appeals despite her later nomination.
“There was continuity in terms of the experiences of Justice Jackson and Judge Motley with a focus on practice background and a lot of noise,” said Brown-Nagin.
In the half century between Justice Jackson and Motley, there are still many significant barriers to entry for Black women looking to get into the legal field, Brown-Nagin explained. Black women make up only 3.4% of the federal judiciary, with 49 judges serving across the country. Deep-rooted discrimination in the legal field has prevented many Black women from building qualifications, she said, and added that making it to the federal bench requires networking and connections from within the industry. Brown-Nagin added that, unlike groups that have historically dominated the bench, for Black women to be considered for these positions, “there needs to be the political will.” Creating more diversity at the judicial level will require long-term efforts to promote diversity in the legal field, according to the panel.
Barriers to entry apply to other marginalized groups, the panelists added, including for Native Americans who account for 0.4% of the bench with four judges. “We share some of the same issues that other attorneys of color share and then you add to those issues,” said Saunooke.
The population of Native Americans in the U.S. is relatively small, he said, and added that historically tribal citizens have been subjected to federal assimilation policies that weren’t concerned about giving Native Americans a voice in democracy. A cultural aspect of the judicial pipeline, he added, is the networking required to move up in the legal community and to the federal bench.
“The Native American community is not about self promotion, they look at the community as a whole as more important than the individual,” he said. “So running in the circles and groups that participate in the federal nomination process is not only where you don’t find them, but even when they put their names in, self promoting, getting out there is difficult.” “I think we have to realize or recognize that we just don’t start [at] a level playing field,” he added.
While the ABA report focused on the federal judiciary, there’s very little data on the demographics of state court judges, Aldana said. With a handful of exceptions, most states don’t track the gender, race or other demographics of their judicial branch which means there isn’t a good benchmark to compare federal data to.
The ABA’s most recent report found a remarkable difference in appointment trends between Republican and Democrat presidents. Republicans appointed significantly larger ratios of men and white nominees than Democrats, the report found.
With midterm elections in the fall, the panel expressed doubt that the diverse trend seen under the Biden administration will continue if Democrats lose their slight majority in the Senate. It’s not that some political parties oppose or support diversity outright, the panel expressed, but a Senator’s decision to affirm a judge absolutely corresponds with their political leaning. “Partisanship matters in the appointment of federal judges and ideology matters,” said Brown-Nagin.
The panel added that diversity is not a bad thing and that studies haven’t shown any bias in judges who are women or not white when presiding over trials. Getting the bench to look more like the rest of the U.S. by including diverse backgrounds and perspectives strengthens both the judiciary and bolsters public confidence in the courts, according to panelists.
“But the goal is supposed to have equity and a fair perception of justice that is created by a bench that reflects the society we’re in, and judges who are open minded and understand what’s happening,” said Saunooke. He added that with public confidence in the U.S. judicial system at an all time low, working towards diversity on the bench is especially important.