February 28, 2021

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Biden wants to put a Black woman on the Supreme Court. That’s underscored a lack of diversity in lower courts

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WASHINGTON – An expected wave of retiring judges will give President Joe Biden a chance to address a startling lack of diversity on the federal bench, advocates say, a shift that eventually could have implications for future nominees to the Supreme Court.

Biden repeatedly promised during his presidential campaign to name a Black woman to the nation’s highest court for the first time in history if a seat opens on his watch. But that commitment has drawn attention to a lack of Black women on U.S. appeals courts – the pool from which Supreme Court justices usually are drawn

With several high-profile federal judges announcing in recent weeks that they will step away from active service, Biden will face enormous pressure to not only make good on his promise of a historic Supreme Court nomination but also to bring a degree of racial balance to the lower courts where the vast majority of federal cases are decided.

Four Black women serve as appeals court judges out of 179 judgeships – all of them older than 65, according to the Federal Judicial Center, the research arm of the federal court system. There are 35 Black female federal district court judges, according to the center’s data, just more than 5% of the total number of judges. 

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“The path that other Supreme Court justices have taken has been limited for Black women,” said Aimee Allison, founder and president of She the People, a group that advocates for women of color in politics. “Oftentimes, the path has been blocked.”

Biden, a former Senate Judiciary Committee chairman, will soon be able to change that, advocates say. Judge David Tatel, nominated to the U.S. Court of Appeals for the D.C. Circuit in 1994, announced last week that he would take “senior status,” a form of semi-retirement. Biden nominated another judge on that court, former Supreme Court nominee Merrick Garland, as his attorney general – opening another seat.

That has created multiple paths for Ketanji Brown Jackson, a federal district court judge in Washington who is widely expected to ascend to the appeals court and who has emerged as a leading candidate to be Biden’s first Supreme Court nominee. 

Court observers point to the New York-based U.S. Court of Appeals for the 2nd Circuit, where two judges have announced they are taking senior status, as another place where the Biden administration could have an impact. Another is the Chicago-based 7th Circuit, where Senate Republicans ran out the clock on Myra Selby, nominated by President Obama in 2016 and the first Black woman to serve on Indiana’s Supreme Court.

When President Donald Trump took office in 2017, Selby’s nomination was dropped.Trump picked Amy Coney Barrett for the 7th Circuit spot and, four years later, nominated Barrett again – for the Supreme Court.  

“We weren’t in good shape before, but we’ve gone down in numbers,” said Fatima Goss Graves, president of the National Women’s Law Center. “It actually provides an opportunity to shine a light on the rich and deep base of Black women attorneys in this country whose names and work may not have been as visible.”

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund, reacts to the Supreme Court ruling striking down a key piece of the Voting Rights Act.

Breaking barriers 

Supreme Court nominees don’t have to come from appellate courts, but they usually do. Only one current justice didn’t hear appeals – Elena Kagan – and she was the U.S. solicitor general. As the federal government’s top lawyer arguing cases before the high court, the position is so closely intertwined with the Supreme Court that it’s sometimes referred to as the “10th justice.”

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“What’s so distressing is the traditional pipeline to the Supreme Court is bare” when it comes to Black women, said Leslie Proll, a veteran civil rights lawyer who advises the NAACP on judicial nominations.  

Biden first raised the prospect of nominating a Black woman for the court during a debate days ahead of the Feb. 29 presidential primary in South Carolina last year. The former vice president had performed poorly in early Democratic nominating contests in Iowa and New Hampshire. His win in South Carolina – a state with a large share of African American voters – was key to his comeback.  

“I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation,” he said to applause at the time.  

Months later, Biden told reporters he was “putting together a list of a group of African American women who are qualified and have the experience to be in the court.” Aides to Biden’s transition told the Wall Street Journal last fall that he would have a short list of candidates compiled by the time he was inaugurated Jan. 20. 

A White House spokesman declined to answer questions about the status of that effort. 

Trump, by contrast, had released a list of potential Supreme Court nominees during his 2016 campaign in an effort to woo evangelical voters. The courtship worked, and Trump drew from his list and later additions to it for his three Supreme Court nominees.     

President Joe Biden leaves the White House to spend the weekend in Camp David, on February 12, 2021.

Not only would Biden’s pledge bring the first Black woman to the Supreme Court, it would also put four women together there for the first time – adding to a bench that includes Kagan, Barrett and Associate Justice Sonia Sotomayor, an Obama appointee who is the court’s first Latina. It would also be the first time two African Americans serve simultaneously: Clarence Thomas is the only Black justice.

Catherine Smith, a professor at the University of Denver Sturm College of Law, said it’s important to address the dearth of Black women on the federal appeals bench for several reasons: Not only is it a pipeline for Supreme Court nominees, but it’s also where a considerable number of federal cases are ultimately decided.

“It is a misstep to have a singular focus on one or two people of color,” said Smith, who wrote a piece for the National Law Journal in December suggesting several Black female scholars for the court. “I think that approach can ultimately lead to a lack of diversity or just a few out of close to 200, as is the case now.”

Then-Vice President-elect Kamala Harris looks on as Kristen Clarke delivers remarks after being nominated to be civil rights division assistant attorney general by then-President-elect Joe Biden at The Queen theater on January 07, 2021, in Wilmington, Delaware.

In the running

Biden’s first opportunity to follow through on his promise would likely arise if Justice Stephen Breyer, 82, retires before the 2022 midterm election. Breyer joined the court in 1994, a year after Justice Ruth Bader Ginsburg, and watched how her decision not to step down before Republicans won control of the Senate in 2014 and the White House two years later resulted in today’s 6-3 conservative majority.

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Left-leaning groups have ramped up their calls for Breyer to retire so Biden can nominate a replacement while Democrats control the Senate. Breyer told Slate in December that “eventually I’ll retire” but added that “it’s hard to know exactly when.”

Still, several potential candidates have already emerged: 

Jackson, the federal district court judge, was on Obama’s short list after Associate Justice Antonin Scalia’s death in 2016. At 50, she could serve decades on the court. An Obama appointee who frequently shot down lawsuits filed by the Trump White House, Jackson won Senate confirmation by voice vote 2013, signaling she was not controversial.

She would be the only justice to have been a public defender, answering a call from some who are promoting nominees with more diverse legal backgrounds.

• Leondra Kruger, a justice on the California Supreme Court, worked in the Justice Department for the Obama and George W. Bush administrations. Kruger argued a dozen cases at the Supreme Court during those years before then-Gov. Jerry Brown, a Democrat, made her one the youngest ever named to the state’s high court. 

At 44, Kruger also could have a long career on the nation’s highest bench, and she is widely viewed as striking a more moderate path than some of the other Democratic appointees on the California court.

• If Biden looked beyond current judges the field widens considerably. Progressive groups such as Demand Justice have offered up more than a dozen names, including Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund; Kristen Clarke, recently nominated to lead the Justice Department’s civil rights division, and Melissa Murray, a law professor at New York University. 

“The Supreme Court is in desperate need of lawyers with experience representing real people and the interests of justice and democracy,” said Tamara Brummer, senior adviser with Demand Justice. “Black women have been on the front lines of the fight to protect and defend our democracy, so it’s no surprise that there are a plethora of brilliant Black women lawyers who would bring badly-needed experience to the Court.”

Had Republicans kept the Senate majority this year, Kruger’s centrist approach may have given her an edge, predicted Frank Ravitch, a Michigan State University law professor. But after Democrats won two runoffs in Georgia to retake control of the chamber, he said, it is Jackson who may have an advantage.

“If McConnell had not blocked so many of Obama’s appointments you’d already have Brown Jackson on a federal court of appeals,” he said, referring to Garland’s blocked Supreme Court nomination. “There needs to be more diversity on the federal bench than we have and some of that simply is because of many years of systemic exclusion.”

McConnell aides declined to comment but conservatives pushed back on the idea that Trump’s nominees didn’t bring diversity to the federal bench, noting that the former president appointed Judge James Ho, a Taiwanese immigrant, to the 5th Circuit and Judge Amul Thapar, the second Indian American appeals court judge, to the 6th Circuit, among others. 

“Trump’s nominees actually demonstrate a great deal of diversity; it wasn’t a matter of attempting to fill certain quotas,” said Carrie Severino with the conservative Judicial Crisis Network. “But look at people he has nominated – they represent a broad range of American experience.”

Justice Neil Gorsuch, left, and Justice Stephen Breyer, right, stand during a private ceremony for Justice Ruth Bader Ginsburg at the Supreme Court in Washington, Sept. 23, 2020.

Challenge vs. opportunity 

Trump was slightly more likely than recent Republican presidents to appoint women, according to Pew Research Center data, but far less than Obama. Roughly a quarter of Trump’s judicial appointments were women, compared with 42% for Obama. 

The numbers are even more stark for racial and ethnic minorities: About 16% of Trump’s judicial nominees were Black, Hispanic, Asian or otherwise not white, according to Pew. That compares with 18% for President George W. Bush and 36% for Obama. Given the number of Trump judges, advocates said, those percentages had a huge impact. 

“Decisions generally are stronger when they grow out of a set of experiences that are diverse,” Goss Graves said. “It speaks poorly of the state of the federal judiciary that it has become less diverse and rapidly so.” 

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