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Biden poised to add diversity to federal courts

Next administration's ability to add diversity to the federal bench hinges largely on control of the Senate

Joe Biden, then the Democratic nominee for president, leaves the Capitol after a memorial service for the late Supreme Court Justice Ruth Bader Ginsburg who became the first woman to lie in state on Sept. 25, 2020.
Joe Biden, then the Democratic nominee for president, leaves the Capitol after a memorial service for the late Supreme Court Justice Ruth Bader Ginsburg who became the first woman to lie in state on Sept. 25, 2020. (Tom Williams/CQ Roll Call)

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.

“When you have people who come from various backgrounds — maybe they had a lower-income upbringing, or maybe they were raised in a more racially diverse environment — they have a different perspective in terms of the impact that their cases and their decisions will have on people’s lives,” Martin said.

Setting the tone

While a state’s senators have great say in recommending potential judicial nominees to the White House, the administration can set a tone for the type of candidates a president will seek to appoint.

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. He chose California Sen. Kamala Harris, who is biracial, to be the first female vice president, and they both hired all-women communications teams for when they take over the White House.

Biden, a former Senate Judiciary chairman who had the first female senators join that panel in 1993 when he held the gavel, has so far announced picks for eight Cabinet-level officials, including five women and five who identify as minorities.

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. But he also pointed out that race or sexual orientation weren’t his only criteria and that “when you cast a wide net, and you look at all the people who are qualified, then you’re going to end up with a court that reflects America.”

New Jersey Sen. Cory Booker, the first Black man to be a member of the Senate Judiciary Committee, has been among the most vocal of Democratic lawmakers who have objected to the trend under Trump.

“President Trump has nominated more than 50 individuals to the federal courts of appeals. Were you aware that just one of those nominees is Hispanic, and that not a single one is Black?” Booker asked a judicial nominee last month in written questions.

Republicans are pressing to confirm that nominee, Thomas Kirsch, who is white, to the U.S. Court of Appeals for the 7th Circuit, which hears cases from Illinois, Indiana and Wisconsin and has no minority judges.

“I am not specifically aware of all of President Trump’s judicial nominees,” Kirsch replied. In an answer to another Booker question, Kirsch agreed that diversity in the judicial branch is an important goal.

Trump even gave a nod to the importance of a judge’s diverse experiences when touting his third Supreme Court nominee, Amy Coney Barrett.

Barrett, Trump said, would become one of only two justices born and raised in the South and the only current justice without a degree from Harvard or Yale. Barrett also has a child with special needs and would “make history as the first mother of school-aged children ever to serve on the U.S. Supreme Court. That’s good.”

Conservative advocacy groups defend Trump’s record on diversity and say Senate Democrats, despite their talk, opposed Trump’s picks of minorities and women. Along with Barrett, they highlight some of Trump’s appeals court picks: David Stras, the Jewish grandson of Holocaust survivors; Amul Thapar, the first American of South Asian descent on the federal bench; Stephanos Bibas and Greg Katsas, the sons of Greek immigrants; and Don Willett, who grew up living in a trailer home.

Difficult to measure

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.”

“The majority opinion essentially argues that we should not penalize Alabama’s legislators for Alabama’s past; rather, we should start with a clean slate when reviewing the Photo ID Law. But this is not what the law commands us to do,” Gayles wrote. “Alabama’s history of voter suppression is relevant here and provides a wealth of direct and circumstantial evidence that should be considered at trial.”

And in March, two Trump-appointed judges on the U.S. Court of Appeals for the 5th Circuit based in New Orleans, Willett and Andrew Oldham, threw out a Black man’s employment discrimination claim under a federal law that allows civil rights lawsuits against state government employees.

The panel’s third judge, Jennifer Walker Elrod, a George W. Bush nominee, noted in a dissent that the majority decision created a new, higher threshold for such employees to avoid having their lawsuits dismissed early on in the proceedings.

There are many such examples not only among the Trump judges, but among judges going back in the country’s history, said Elliot Mincberg, a senior fellow at the People For the American Way who tracks judicial nominations.

“And it’s a reason why we think it’s so important that the Biden administration is dedicated to not just demographic diversity, but also professional diversity, in looking for judicial nominees,” Mincberg said.

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.”

Confirmation battles ahead

How much Biden might be able to change the federal judiciary could depend largely on the results of next month’s Senate runoff elections in Georgia, which will determine whether Republicans or Democrats control the chamber during his first two years in the White House.

Republicans slowed down judicial confirmations when they had control of the chamber in the last two years of the Obama administration. But they then streamlined the confirmation process during Trump’s term, which could ease Democratic efforts to confirm Biden picks if they win the majority.

Senators have an important role as well in deciding who gets nominated. Judicial selection typically starts with the senators in each state, who have their own way of narrowing down potential nominees for the White House.

Christopher Kang, a former White House lawyer who worked on judicial nominations during the Obama administration, said the Biden transition team needs to reach out now to all of the different legal communities “to make sure that you’re not just relying on any one particular source for names.”

“I’m confident that the president-elect understands the importance and the priority of judges,” said Kang, now with Demand Justice, a liberal advocacy group that focuses on judicial nominations and called for changes to address the past four years of Trump appointees. “And I think that that’s going to be an important thing as the administration gets started.”

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