Racial Diversity on the Federal Bench: Have We Hit the High Water Mark?

Last week, we discussed the low percentage of women among Trump’s judicial nominees.  This week, we address an equally concerning phenomenon: the low percentage of racial minorities.  President Trump’s first few batches of judicial nominees have the lowest proportion of “nonwhite” judges since the Kennedy Administration.  This portends a dramatic drop in the percentage of minority judges in the federal judiciary.

According to the Congressional Research Service (CRS), as of August 1, President Trump has nominated only one non-white judge to the federal bench: Judge Amul Thapar. (The nominees submitted on August 3d were not analyzed but are also overwhelmingly white).  This means that under 4% of Trump’s nominees have been racial minorities.  In comparison, 36% of President Obama’s judicial nominees were racial minorities.

Traditionally, Democratic presidents have been more sensitive to racial diversity in federal judicial appointments.  Presidents Carter, Clinton, and Obama all emphasized diversity when selecting federal judges, and racial minorities achieved key milestones in the federal judiciary during their presidencies.  Nevertheless, Republican presidents in the modern era, including Presidents Reagan, George H.W. Bush, and George W. Bush, all produced a group of judicial nominees more diverse than those of President Trump.  In fact, even Presidents Nixon and Ford had a slightly higher percentage of nonwhite nominees than President Trump.

According to CRS, minority judges are seeing the first sustained decline of their numbers from the peak they reached in early 2015.  Much of the decline is due to the Republican Senate’s refusal to confirm President Obama’s judicial nominees in the 114th Congress, and cannot be blamed on President Trump.  Nevertheless, unless this Administration makes an affirmative commitment to racial diversity, they will oversee a federal bench with far fewer minority judges.

It is still early and the Trump Administration can rectify this problem.  They can demonstrate a commitment to judicial diversity by identifying and nominating qualified minority candidates to the federal bench.  Such an effort does not have to be at the expense of ideology, as many judicial conservatives on the federal bench are of minority background, include Judges Janice Rogers Brown and Jerome Holmes.  The Administration can identify similar candidates, such as Arizona Supreme Court Justice John Lopez and U.S. District Court Judges Diane Humetawa and Marco Hernandez, and elevate them to the federal court of appeals.

With the end of the August recess, a new wave of nominees is expected next week.  The new nominations will either confirm the trend noted above, or mitigate it.

P.S. Special Thanks to Glenn Sugameli of Judging the Environment for linking me to the CRS data on diversity in judicial nominations.