After finding out that the civil rights panel she’d be on at a conference for the U.S. Court of Appeals for the Tenth Circuit was otherwise white and male, Professor Nancy Leong of the University of Denver told the organizing judge she couldn’t join unless that changed. The judge rejected even a cost-free solution—an additional panelist—and informed Leong that she would be replaced.
Leong’s experience isn’t unusual. The judiciary is notoriously homogenous, and judges actively perpetuate that homogeneity.
A disinterest in diversity on a conference panel is consistent with the choices judges make in chambers. Judges can’t pick their colleagues, but they do pick their clerks, and the demographics are revealing. In 2016, 79 percent of federal judicial term clerks were white and 53 percent were male. Since 2005, 85 percent of Supreme Court clerks have been white.
Even when President Obama made a point of nominating women and people of color to judgeships, the numbers, while far better than his predecessors’, never reached representative levels. Sixty-seven percent of Bush’s judges and fifty-52 percent of Clinton’s were white men. Under Obama, they still made up 38 percent of nominations, much closer to (but still shy of) white men’s actual demographic representation.
The lack of diversity in the judiciary matters—a lot. It affects the composition of not just panels but the legal profession, as well as case outcomes. Federal clerkships are virtually a threshold requirement for entry into the upper echelons of the legal profession. Uniformity among judges likely results in systematic racial bias.
Trump’s judicial nominees overall have been 91 percent white and 81 percent male. If he succeeds in filling all of the current and anticipated judicial vacancies, the effect will be long-lasting.
Federal judges are appointed for life. Trump is nominating candidates who are relatively young, and therefore many are likely to remain on the bench 30 to 40 years. If he continues to select nominees disproportionately from the same demographic of white, male and conservative, Trump will be effectively freezing the demographic and ideological composition of the bench for decades.
With stakes this high, it’s critical that members of Congress are joined by the public in pushing back on Trump’s picks. So far, only the most unqualified judicial nominees have experienced bumps along the path to confirmation. With Republicans in control of the Senate, constituents’ protests are the only way to stop Trump’s judicial takeover.