- Former President Donald Trump appointed an overwhelming number of white judges to the federal bench.
- Biden has plans to buck the trend.
- Experts say Biden is facing rising pressure to hold to his word from activists and lobbyists.
- See more stories on Insider’s business page.
Historically, the federal judiciary has been an unrepresentative institution. President Donald Trump’s appointments made it worse.
In just four years, Trump placed 234 judges with lifetime tenure to the federal courts, making up 28% of the current federal judiciary. An overwhelming number – 192 – of Trump’s active appointments are white, while only 37 of them are people of color.
The figure represents a startling contrast from efforts pursued by former President Barack Obama to pick candidates with diverse backgrounds for the federal bench. Two-hundred current federal judges appointed by Obama are white, and 115 are people of color.
Insider compiled a database of every active judge under Article III of the Constitution, which includes Supreme Court justices, federal appeals and district judges, as well as justices on the US Court of International Trade. Once nominated by the president and confirmed by the Senate, Article III judges are granted a position for life, and can serve on the court for decades after their nominating-president leaves office.
Trump’s return to mostly white judges on the federal courts may have lasting effects, experts told Insider, unless President Joe Biden and congressional Democrats attempt to address the disparity.
Why racial diversity in the federal judiciary matters
The federal judiciary does not mirror the racial makeup of the United States.
Roughly 40% of Americans are people of color, according to the US Census Bureau, but just 25% of active federal judges are people of color. Trump’s selection of minorities for the bench is an even smaller amount – 16%.
Federal judges help shape the law, and their individual perspectives and experiences play a role in their decision-making that impact everyday people’s lives, experts told Insider. That means having a federal judiciary that reflects the nation’s racial diversity can change legal outcomes, and consequently, improve the public’s perception of the courts, they said.
“Specifically, we know that that racial-minority judges, and especially Black judges, tend to rule differently than white judges, at least in certain types of cases,” Christina Boyd, an associate professor of political science at the University of Georgia, told Insider. Those cases usually relate to civil rights issues, such as voting rights and gender discrimination.
If Americans see people on the bench who look like them, they are more likely to view the court system as a fair problem-solving tool they can rely on, she added.
Correspondingly, Trump’s failure to choose more judges of color has decreased public trust in the courts among communities of color, especially as the nation continues to reckon with racial inequalities in the criminal justice system, Carl Tobias, a professor at the University of Richmond School of Law, told Insider.
“It’s valuable for citizens to have confidence in the courts,” Tobias said. “So it’s valuable for the courts to reflect the people who come into court and the people who live in the country.”
Republican presidents have generally appointed more white judges
On the 2016 campaign trail, Trump riled up voters by vowing to pack the courts with conservative judges. Once he took office, he worked closely with then-Senate Majority Leader Mitch McConnell to fulfill that promise.
Both Republican and Democratic presidents have to respond to their bases, and usually do so by selecting judges who match their ideologies, Barbara Graham, an associate professor of political science at the University of Missouri-St. Louis, told Insider.
But GOP presidents typically score low marks on judicial diversity compared to their Democratic counterparts, partly because the parties have vastly different racial demographics, Graham said.
“The Republican Party is basically a white party,” Graham said, and therefore may explain why Trump’s pool of appointments were mostly white. The Democratic Party, on the other hand, has more people of color in its tent.
Of former President George W. Bush judicial appointments, approximately 18% were people of color, compared to Bill Clinton’s 25%, according to data from the Pew Research Center. Similarly, Ronald Reagan appointed 10% people of color, whereas Jimmy Carter nominated 22%.
Republicans also generally focus on the federal courts more than Democrats do. Trump prioritized filling vacant seats regularly and quickly, even if the end result meant a less diverse federal judiciary, experts said.
Biden could potentially alter the trajectory of the courts
Trump appointed three justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – to the nation’s highest court, tilting the bench’s ideological balance significantly to the right. Each of them are white.
Biden plans to buck that trend.
During the 2020 presidential race, Biden pledged to put the first Black woman on the Supreme Court if a spot emerged during his tenure. As commander-in-chief, he’ll face pressure from advocates and civil rights groups to follow through on his word and likewise correct the lack of diversity on the lower federal courts.
“I think [Biden’s] very aware of the huge, actual impact and the symbolic impact of diversity,” Tobias told Insider, yet it remains to be seen whether Biden “will bring some balance back” to the courts.
So far, Biden has mostly concentrated on confirming his Cabinet and federal agency nominees, who form the most racially-diverse administration in US history. The president released his first batch of judicial nominations at the end of March.
The list includes Judge Ketanji Brown Jackson, a Black woman who is rumored to replace recently confirmed Attorney General Merrick Garland on an appeals court that is often considered to be a launch pad to the Supreme Court. If confirmed, Biden’s first 10 judicial appointments would include the first Black, Muslim, and Asian-American judges to serve in certain courts.
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