Regardless of what happens to the Supreme Court nomination of Amy Coney Barrett, the nation’s federal bench is mostly white and male, and since Donald Trump became president, the complexion of those who rule in federal courtrooms has not changed, according to legal scholars.
That fact was underscored in the Oct. 7 vice presidential debate between Sen. Kamala Harris (D-Calif.) and Vice President Mike Pence.
Pence raised the prospect of Democrats “packing” — or expanding — the nine-member Supreme Court to counter a conservative tilt to the nation’s highest court with the expected addition of Barrett to replace the late Justice Ruth Bader Ginsberg.
“Do you that know of the 50 people President Trump appointed to the court of appeals for lifetime appointments, not one is Black,” Harris responded.
“You want to talk about packing the court, let’s have that discussion,” she said, echoing a concern voiced by attorneys and legal scholars about the stubborn dominance of courtrooms by white males.
“There is a lack of diversity on the federal bench,” said Brooklyn Civil Court Judge Cenceria P. Edwards. “There are 179 court of appeals judges, 22 of them are African American. “Of the 53 judges that President Trump appointed, none were African American.”
At the same time, said Edwards, who chairs the judicial committee of the National Bar Association, people of color are grossly underrepresented on the bench.
“There is a large number of African American judges who are qualified and the NBA has a judiciary committee that is working on the issue of diversity in the federal courts. New York state just issued a report on the lack of diversity so this is … problematic on the state level and the federal level.”
Her assertions buttress the findings of an October 2019 report by the Center for American Progress that found that 80 percent of the current federal judges are white and 73 percent are male. Census data shows that the U.S. population is 60 percent white and slightly less than 50 percent male.
The report also shows that while Hispanics make up about 18 percent of the U.S. population, they represent seven percent of the federal bench.
The demographics of the bench need to change, civil rights advocates said. “Members of the public increasingly perceive federal courts as unfair, particularly to underrepresented groups,” said Danielle Root, lead author of the report and associate director of Voting Rights and Access to Justice at CAP.
“The inclusion of judges from different backgrounds and walks of life results in more thoughtful and balanced decisions and can help restore legitimacy to the courts.”
According to the Brookings Institution, when Trump was elected there were 105 federal district court and federal court of appeals vacancies, mostly because President Obama was unsuccessful in overcoming the resistance of Senate Republicans.
Obama predicted the impact of a lack diversity on the bench in anApril 2016 speech at the University of Chicago law school.
He said, “if you start getting into a situation in which the process of appointing judges is so broken, so partisan that an eminently qualified jurist cannot even get a hearing, then we are going to see the kinds of sharp, partisan polarization that has come to characterize our electoral politics seeping entirely into the judicial system. And the courts will be just an extension of our legislatures and our elections and our politics.”
“This is a national civics lesson,” said Melanie Campbell of the National Coalition on Black Civic Participation. “We have always had to fight for justice the federal judicial is where we went for justice. We are witnessing an attack on voting rights on whole higher level but what you don’t see what is going inside the courtrooms.”
NAACP Washington Bureau Chief Hillary Shelton said the lack of people of color on the federal bench underscores the stakes of the 2020 presidential election.
“Whoever we select as president of the United States is the person with the power to select federal judges in our country,” Shelton said. “The president nominates and the Senate confirms judges to serve on the court for their entire lives.”