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Trump is making the judicial branch white and male again

Alexander Nazaryan
·National Correspondent
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WASHINGTON — A couple of weeks after the 116th Congress opened in January 2019, President Trump announced his first slate of judicial nominees for that congressional session. That slate was notable mostly for what it lacked: any hint of diversity. All six nominees were men, and all six men were white.

Those nominees conformed to a pattern that has held throughout the first three years of the Trump presidency. With ruthless efficiency and speed, and with little consideration of Democratic objections, Trump has managed to largely blunt and even reverse his predecessors’ efforts to diversify the federal judiciary by appointing dozens of white men to the bench.

“It’s bleak for sure,” says Danielle Root, who studies judicial appointments for the progressive Center for American Progress. “It’s not looking good.”

Donald Trump
Photo illustration: Yahoo News; Photos: AP, Getty Images (2)

The president’s supporters have cheered the ideological bona fides of Trump’s appointments, which have been largely guided and certified as acceptable by the conservative Federalist Society and Heritage Foundation. They have evinced little concern over the lack of nonwhite, nonmale nominees. In listing President Trump’s top 10 accomplishments in 2019, conservative Washington Post columnist Marc Thiessen put Trump’s continuing “to appoint conservative judges at a record pace” in first place.

Detractors have noticed too, worried both by what Trump’s judges believe and what signal a cohort of white males ascending to the federal bench sends to society. They charge that a lack of representation for judges of color and for women could result in a loss of faith in the courts by those communities, in particular on contentious issues like policing, affirmative action and reproductive choice.

“Even since Reagan, both Republicans and Democrats, successively, have done better at increasing diversity,” says Elliot Mincberg, a legal scholar at the progressive think tank People for the American Way. “This is the first time since Reagan that it's gone backwards.”

Recent (confirmed) nominees by Trump include Steven Menashi, who was accused of racism and Islamophobia, and Kyle Duncan, who participated in an effort to suppress African-American voting in North Carolina. Many Trump nominees have even refused to say whether Brown v. Board of Education was properly decided in 1954. The landmark Supreme Court ruling, a unanimous decision under Chief Justice Earl Warren, struck down school segregation and paved the way for the civil rights movement. Its legitimacy had stood virtually unchallenged since the busing wars of the Nixon era.

The lack of diversity is apparent in Trump nominations for district courts, appellate courts and the Supreme Court. Trump is the first president since Gerald Ford not to nominate either a woman or a person of color to the Supreme Court, though he still might, especially if he gets a second term. (George W. Bush nominated a woman, White House counsel Harriet Miers, but that was in his second term, and her nomination was withdrawn).

Both of Trump’s confirmed Supreme Court justices are middle-aged white men. The first of those — who was also the first Trump nominee to any court — was Neil Gorsuch, nominated by Trump almost exactly three years ago.

Since then, the Senate has confirmed 119 other white men to the courts, out of a total of 187 confirmed judges, which means that white men comprise 64 percent of his appointees to the federal bench. In all, 85 percent of Trump nominees have been white and 76 percent have been men.

Those latest numbers come from “Trump’s Attacks on Our Justice System: 2017-2019,” a new report from a report by Alliance for Justice, a progressive advocacy group that has opposed most Trump judicial nominees. Background information on judges, including gender and ethnic background, can be found at the Federal Judicial Center, a government research agency.

“The stats of the Trump nominees are staggering,” says Vanita Gupta, a former head of the Justice Department’s civil rights division. Gupta, who now runs a judicial advocacy group called the Leadership Conference, called Trump’s nominees “extreme ideologues” who were “unfit to serve” on the federal bench, regardless of their race, gender or sexual orientation.

It’s unclear how many more appointments President Trump, who is in the final year of his term, will get to make. By an informal agreement known as the Thurmond Rule, a president usually does not nominate new judges in the last six months or so of his term, unless there is bipartisan consensus for their confirmation. But Trump and his Republican allies have shown no hesitancy in breaking with precedent. Senate Majority Leader Mitch McConnell stretched the Thurmond Rule to the breaking point by refusing even to consider President Obama’s nomination of Merrick Garland to the Supreme Court, which came on March 16, 2016.

“We have seen that some senators are not above blatant hypocrisy,” Root of the Center for American Progress says.

At the same time, five Republican members of the Senate Judiciary Committee, which considers judicial nominations, are facing reelection in November, meaning that they could need significant time away from Washington, slowing the process of confirming new appointments. Among them is the chairman, Lindsey Graham of South Carolina, who is facing a spirited Democratic challenge.

Lastly, it could simply be smart politics for Trump to keep some judicial nominations open, to motivate conservatives to vote for him. Voters, after all, are far more likely to be moved by wanting something, as opposed to already having it. Trump understands as much. In an October campaign rally, he warned supporters that a Democratic president would appoint “far-left judges” who would “shred our Constitution.”

None of that, however, is anything close to a guarantee that judicial appointments will cease or even slow, though they might have in ordinary times and under the same conditions.

Trump regularly celebrates the number of “great judges” he has appointed, noting — correctly — they are about 10 years younger, on average, than Obama’s nominees. His youngest nominee, Alison Jones Rushing, was 37 at the time of her confirmation.

Obama left Trump with 107 open judicial seats, though the gift was hardly an intentional one. Obama was unable to fill those seats because Senate McConnell, R-Ky., simply refused to consider many of his nominees, including Garland.

Those openings have allowed Trump to remake the judiciary almost wholesale. The change has been especially notable in the circuit appeals courts, the level of the federal judiciary directly beneath the Supreme Court. He has filled 10 vacancies on the Ninth Circuit, the hugely influential California-based appellate court that Trump has often complained is too left-leaning. Having once threatened to break up the Ninth Circuit, he has instead utterly changed its makeup. Of his 10 nominees, all but two are men, and of those men, all but two are white.

Trump’s picks are in keeping with the demographics of the legal profession. About 85 percent of attorneys are white, according to the American Bar Association, and about 62 percent of attorneys are men, according to the Census Bureau. But the work judges do reverberates across all of society and, in that respect, Trump’s picks do not mirror the face of a nation that will soon no longer be majority-white.

Critics see the lack of diversity as symbolic of something more consequential and troubling. "What is striking is not only the lack of diversity” among Trump’s judges, says Alliance for Justice founder and president Nan Aron, but those judges’ collective attitudes about the law. She charges that Trump’s “focus has been to remake the judiciary as a forum to favor the wealthy and powerful.”

Mincberg explains that Trump and his allies’ “very strong preference for extreme right-wing ideology tends to decrease the number of people of color and, to a certain extent, women” available for judicial nominations.

Judicial diversity is important, Gupta argues, because “courts have to represent — and look like — the face of America in order to have legitimacy” with the public. Mincberg adds that diversity is especially important in circuit courts, where panels of judges hear appeals. A judge who comes from a Native American reservation, for example, or identifies as transgender, could persuade the panel to consider an argument that may not otherwise be readily apparent.

The notion of judicial diversity as a valuable asset was probably most famously expressed by Obama nominee Sonia Sotomayor, who in a speech given eight years before her nomination said that a “wise Latina woman” judge would “more often than not reach a better conclusion than a white male who hasn't lived that life.” Conservatives used the “wise Latina” comment to suggest Sotomayor thought white judges were inferior. In context, however, it is clear that she was making a point about different life experiences and perspectives.

Supporters of the president charge that statistics about Trump nominees’ gender and race are wielded by his opponents as a means to discredit the president rather than out of a genuine concern for equity on the bench.

"Alliance for Justice is trying to act as if they’re a neutral party but, in reality, they ignore facts to serve their overarching political activism and agenda,” says Carrie Severino, the chief counsel and policy director for the Judicial Crisis Network, a conservative organization that supports Trump’s approach to the judiciary.

Severino and other supporters of the president point to several nominees who break the stereotype of an all-white, all-male judiciary: Neomi Rao of the District of Columbia circuit court, who is a South Asian woman; Patrick Bumatay of the Ninth circuit, who is the son of Filipino immigrants and is openly gay; Ken Lee, also of the Ninth circuit, who came to the United States as a young child from South Korea; Barbara Lagoa of the 11th Circuit, the first woman of Latino background to join the federal appellate bench.

“Alliance for Justice opposed all of these judges,” Severino correctly notes.

Mike Davis, a conservative activist who heads a judicial advocacy group called the Article III Project, accused Democrats of “a long and well-documented pattern and practice of unfairly attacking and opposing women and minority judicial nominees from Republican presidents.”

As evidence, Davis specifically pointed to Democrats’ opposition to Bumatay, who was confirmed last month.

Rorie Spill Solberg, a political scientist at Portland State University, said the Trump nominees are an especially stark contrast to those of Obama. “Obama was very clear that diversity was a big priority for him,” she says. The Alliance for Justice analysis of judicial nominees shows that, in the entirety of his presidency, Obama’s cohort of nominated judges was 64 percent white and 58 percent male. It was by far the most diverse group of judges ever nominated to the federal bench.

Solberg says that George W. Bush also selected “a very diverse cohort” of judges for the federal bench, although those judges were generally conservative. “Trump is much more concerned about ideology,” Solberg says, and seems to care less than Bush did about balancing conservative views with diverse backgrounds.

At the same time, Solberg says that Trump “might be doing better — sort of — on intersectionality,” with nominees like Bumatay and Rao representing complex identities that transcend neat categorization. Diversity, she reminds, has no strict definition. She points out, for example, that while Trump has appointed very few African-American or Latino judges, his record on Asian-American judges is much better.

In three years, he has appointed 12 judges of Asian background to the federal bench. George W. Bush, by contrast, nominated four Asian-American judges during his eight years in the Oval Office.

Trump will probably continue to nominate judges in the next several months, though perhaps not quite at the fervent pace of his first three years in office. His last nominations came in December, leaving a total of 19 judges awaiting confirmation. Nearly all of them are white men.

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