President Biden Confronts a Packed Judiciary, Frozen in Time
In our 2017 newsletter, we observed that there were then 130 judicial vacancies to fill on the federal courts. We noted that the unusually high number was largely due to the Republican-controlled senate blocking dozens of President Obama’s appointees in the final years of his administration. Unsurprisingly, former Majority Leader Mitch McConnell and Senate Republicans were busy over the past four years, pushing a steady stream of predominantly young, White, male judges through to lifetime appointments at all levels of the federal court system.
We now have some perspective on what will likely be one of the longest-lasting and most impactful aspects of Trump’s single disgraceful term in office: a less diverse, significantly more conservative judiciary. In four years, 226 judges have been appointed, including 54 Circuit Court judges and 3 Supreme Court Justices. 76% of Trump’s appointees were men, and 84% were White. Astoundingly, Trump appointees comprise over a quarter of the nation’s federal judiciary overall, with the share even greater at the appellate levels. The average age of Trump’s appointed judges is 50, and all three of his Supreme Court picks are under the age of 55. This means that – given the average retirement age of most judges – Trump’s picks
will continue to sit on the nation’s courts and shape our jurisprudence for several decades.
It is more than unfortunate that the federal judiciary has taken such a halting leap backwards in terms of reflecting the growing diversity of the Nation. In the Seventh Circuit, for instance, 30% of residents are racial minorities; yet every single Circuit Court judge is White. A federal judiciary that is
Windsor County Court House, Vermont
so grossly unrepresentative of the communities it serves is greatly hindered in its ability to administer equal justice. Sadly, research and statistics support that a whiter, more heavily male judiciary is likely to be less sympathetic to people of color and women on legal issues related to race and gender. This is frequently borne out in the employment context, where plaintiffs must often turn to the courts to combat the effects of discrimination in the workplace – both systemic and acute, subtle and overt.
President Biden took part in hundreds of confirmations during his years on the Senate Judiciary Committee, and early indications reveal that as President, he will seek to restore some semblance of balance to the nationwide bench. There are already a number of Circuit Court openings to fill, and over a third of federal appeals court judges will be eligible to step back from active service in coming years. Supreme Court Justice Stephen G. Breyer, 82, is likely to retire in the next few years, and President Biden has already pledged that his first Supreme Court nominee would be a Black woman – an historic first. Given the demographic diversity of President Biden’s administration nominees and confirmed Cabinet members, we are optimistic that the next eight years will see the reshaping of the federal bench to more closely mirror our melting pot of a country – and to enhance equity and justice for all.