Posted on December 10, 2020

Biden Poised to Add Diversity to Federal Courts

Todd Ruger, Roll Call, December 7, 2020

President-elect Joe Biden plans to prioritize more diversity for judges in the nation’s federal courts, a departure from President Donald Trump’s return to mostly white, male appointees.

Although much of the recent political energy focuses on the Supreme Court and whether to make structural changes there, it is the hundreds of lower district and circuit courts that have the ultimate say in all but the several dozen cases the highest court decides each year.

Some Democratic senators and liberal advocacy groups want Biden to use his nominees to make the historically white and male federal bench better represent the U.S. population at a time when police misconduct against minorities, racial inequity in the criminal justice system and public displays of white nationalism have caused political unrest.

Erinn Martin, a policy counsel at the Lawyers’ Committee for Civil Rights Under Law, said minority and female judges bring different perspectives to civil rights cases, such as employment discrimination, voting rights and law enforcement actions.

Judges who reflect a broader swath of the country can instill more confidence in the court system in those communities, Martin said, as can judges who worked as public defenders or civil rights advocates rather than the more traditional paths of prosecutor and big corporate lawyer.


There are clear signs Biden will make race, gender and professional background a priority when filling vacancies on the federal district and circuit courts, even though he has not spoken directly about that specific issue. {snip}


When asked about Biden’s plans for lower-court nominees, transition spokesman Jamal Brown said the president-elect championed confirmations of three female Supreme Court justices — Sonia Sotomayor, Elena Kagan and the late Ruth Bader Ginsburg — and “reshaped the Senate Judiciary Committee to reflect the diversity and breadth of America.”

“As president, he will nominate the first Black woman to the Supreme Court, and appoint judges who share his commitment to the rule of law, and upholding individual civil rights and civil liberties,” Brown said.

And Louisiana Democratic Rep. Cedric L. Richmond — the former Congressional Black Caucus chairman who will be a senior adviser to the president and director of the White House Office of Public Engagement — previously said Trump’s pattern of judicial and Cabinet appointments was “deliberately trying to whiten the country.”

Of Trump’s nearly 200 judges appointed to lifetime positions, 85 percent are white and 24 percent are women, according to statistics kept by the liberal advocacy group Alliance for Justice. That makes his appointees the least racially diverse since the George H.W. Bush administration.

In comparison, President Barack Obama, with Biden as his vice president, made adding diversity to the federal benches a priority in his judicial selection process. Of Obama’s more than 300 appointees, 64 percent were white — the lowest percentage of any president — and 42 percent were women — the highest of any president, according to the Alliance statistics.

That made Obama the first president not to have the majority of his picks be white men, and he often touted that track record. {snip}


Liberal advocacy groups say that there aren’t particular court decisions where it is clear that the race or sex of the judge caused a particular outcome because it’s difficult to separate a judge’s background from their legal or political ideology.

But Alliance for Justice, People For the American Way and the Lawyers’ Committee for Civil Rights Under Law point to several cases that illustrate where a more diverse federal bench might have made a difference.

In July, two white judges on the U.S. Court of Appeals for the 11th Circuit based in Atlanta, including Trump appointee Elizabeth Branch, agreed to dismiss a lawsuit that accused Alabama’s strict voter photo identification law of unconstitutionally discriminating against Black and Latino voters.

A Black federal district court judge from Florida who was designated to sit on the three-judge appeals court panel, Darrin Gayles, dissented in the case, Greater Birmingham Ministries v. Secretary of State for the State of Alabama.

Gayles wrote that the majority accepted as true an Alabama state election official’s assertion that the Alabama Legislature did not intend to suppress minority voters with the law, “despite overtly racist comments by the very sponsors and advocates of the Photo ID Law.”


Martin, of the Lawyers’ Committee, said she hopes Biden will take an approach more like that of Democratic President Jimmy Carter, who nominated more people of color than are actually reflected in the population, which would “help make up some of the gaps and the regression that we’ve seen over the past four years.”