During the 2012 Presidential campaign, Republican candidate Mitt Romney was mocked for declaring that he had “binders full of women” ready to appoint to federal positions. The phrase, while awkward, signaled Romney’s commitment to gender diversity in his appointments. In contrast, President Trump’s appointments, from his US Attorneys to his executive appointments, have been overwhelmingly male. This pattern is evident in his judicial appointments.
As of August 23, 2017, President Trump has named 36 nominees to Article III courts: 11 to the U.S. Court of Appeals; 24 to the U.S. District Courts; and Justice Neil Gorsuch to the U.S. Supreme Court. Out of these 36 nominees, only seven are women. In contrast, by August 2009, President Obama had nominated only 17 nominees, but had named just as many women: seven, including Justice Sonia Sotomayor to the U.S. Supreme Court.
Comparatively, only 19% of President Trump’s judicial nominations are women, a lower percentage than the last three presidents, and comparable with the nominations made by President George H.W. Bush. The ratio is particularly skewed in nominations to the U.S. District Courts. Only four out of 24 District Court nominations have gone to women.
Out of the seven female nominees, three replace departing female judges and four replace male judges. In contrast, six of the male nominees put forward replace female judges. In other words, with the confirmation of these nominees, for the first time since the Eisenhower Administration, the overall number of active female judges would go down.
It is still early, and the Trump Administration could pick up the pace and appoint more women to the federal bench. However, the tea leaves are not promising. Rather, the nominees the Administration have in the works are also, generally, male:
- DC Circuit – While the Administration was looking at four well-qualified female candidates to fill the vacancy left by Judge Janice Rogers Brown’s retirement, the expected nominee, Deputy White House Counsel Greg Katsas, is male.
- Second Circuit – The Administration has pitched four candidates to New York Senators Chuck Schumer and Kirsten Gillibrand to fill two 2nd circuit vacancies: all four candidates are male.
- Third Circuit – The Administration is preparing to nominate Paul Matey to fill one of two vacancies without a nominee. For the other vacancy, the Administration is mulling David Porter. Both candidates are male.
- Fifth Circuit – The Administration is weighing four male candidates for two vacancies on the court.
- Seventh Circuit – The White House has interviewed three men to replace Judge Ann Claire Williams.
- Ninth Circuit – The leading candidates for vacancies in Arizona, California, and Oregon are all men.
- Tenth Circuit – Three male attorneys are being considered for the New Mexico seat vacated by Judge Paul Kelly.
- Eleventh Circuit – The list of candidates being considered for the vacancy by Judge Frank Hull (a woman), is mostly male, but does include female Georgia Supreme Court Justice Britt Grant.
The Administration and its supporters will argue that this doesn’t matter. As long as the nominees put forward are qualified, their gender is irrelevant.
While this is true on the individual level, such an argument is based around the erroneous assumption that the only way a female candidate would be chosen over a male one is due to emphasis on diversity. This is patently false. Women make up approximately 35% of the legal profession, and this percentage is increasing sharply. Furthermore, the federal bench (the elite of the judiciary) is already one third female. As such, producing a pool of nominees that is only 19% female suggests an inability to consider qualified female nominees, rather than a slavish devotion to quality.
Since FDR was in office, every single administration appointed a greater percentage of women to the federal bench than the previous administration of their party. Unless corrective measures are taken, the Trump Administration looks set to break that trend.
Update – I wanted to address a reader inquiry. The reader in question wanted to know why the relevant barometer for comparison was the percentage of women in the legal profession, rather than the percentage of women in organizations like the Federalist Society, from where Trump draws his appointees. Three responses.
First, federal judges primarily serve the rule of law and the general public. As such, it is particularly important that the public maintain faith in the judiciary. Numerous studies have shown that when female or minority judges are left off the bench, that both the quality and perception of justice suffer. As such, you judge the diversity of federal judges based on those appearing in court before them.
Second, the Federalist Society does not constitute the entirety of conservative lawyers. While the membership of the Federalist Society may be predominantly white and male, there are other sources of conservative women. Furthermore, District Court appointments, where the gender gap is particularly bad, generally do not come from the Federalist Society. In most cases, the male nominees being chosen are themselves not members of the Federalist Society. As such, it is difficult to believe that Federalist Society membership is the basis on which female judges are being ignored.
Third and most importantly, the pool of conservative attorneys that Trump is drawing upon for his nominees is essentially the same as the pool tapped by past Republican Presidents. Over ten years ago, despite women making up only about 25% of the legal community, President Bush managed to have women constitute 22% of his appointees. Twenty five years ago, President George H.W. Bush essentially matched Trump’s current 19% despite working with a female legal population that was substantially lower than what Trump has now. When these past presidents, whose nominees were equally conservative, could maintain parity between the percentage of women in their appointments and the percentage of women in the legal community, there is no reason why President Trump cannot do so.