Yesterday, January 26, 2022, President Biden vowed to nominate a Black woman to the Supreme Court upon the retirement of Justice Stephen Breyer. The novelty of President Biden’s promise reflects an extreme lack of representation within the judiciary outside the standard of white, cisgendered, and male. For a system that determines how the law applies to everyone, the judiciary, similar to other aspects of the legal profession, fails to adequately represent the racial and ethnic diversity of the United States, nor does it reflect sufficient LGBTQ+ representation.
White men largely control Art. III courts. Over 71% of active Art. III judges are white, and over 64% of them identify as men. The lack of diverse representation is not unique to the federal judiciary—state supreme courts share in this gross disparity.
A 2020 study reported there are no Black supreme court justices in 28 states, no Latinx justices in 40 states, no Asian justices in 44 states, and no Native American justices in 47 states. The same study found that women hold only 39% of state supreme court seats. These disparities extend beyond race and gender, but in a way that still disproportionately affects Black, Indigenous, and People of Color (BIPOC) communities. For instance, 81% of state supreme court justices have a background in private practice, but only 2% have a background in civil legal aid. In the criminal realm, 37% of state supreme court justices have experience with prosecution, and only 7% of justices have experience as public defenders. The number of states with at least one former public defender on the state supreme court is 19, but 43 state supreme courts have at least one former prosecutor on the bench. Overall, judiciary statistics clearly reflect one specific identity.
Before the end of 2021, the senate confirmed 40 new Art. III judges nominated by President Biden. Biden has prioritized diversity in these nominations: 80% of his appointees identify as women, and 65% identify as BIPOC. Though former presidents, including Republicans, have promised (and sometimes even made good on those promises) to appoint women or BIPOC justices to the high court in the past, conservative news hosts are having a field day criticizing Biden for appointing judges in a “discriminatory fashion.” But fixing the overwhelming lack of representation on courts is not discriminatory; rather, it is necessary to appropriately reflect the population.
Why are courts full of white men?
White men control the appointment of federal judges. The process of becoming an Art. III judge includes a nomination by the sitting president followed by a confirmation by the U.S. Senate. Previously, the confirmation required 60% of Senate votes, now a simple majority suffices. Overwhelmingly, the people that make up this process identify as white cisgendered men. Additionally, these appointments last for life. Absent a violation of “good behavior” federal judges stick around until they retire or die. The Constitution provides no explanation on “good behavior.” Since the inception of the judiciary a grand total of eight federal judges have been removed from the bench. The total number of successful impeachments compared to the total number of current federal judges, let alone every federal judge to ever sit on the bench, clearly reflects the likelihood of a lengthy term. Once a white man has been appointed to the federal bench, odds are he is going to stick around for a while and prevent diverse identities from taking over his seat.
Despite nothing in the Constitution specifying qualifications, you are not apt to receive a nomination to the federal bench sans J.D. Logically, a person deciding law on behalf of the nation should have some sort of legal education, but for persons of color and members of the LGBTQ+ community law school has historically been accompanied by obstacles present at application, admission, and attendance that significantly impact the demographic of the legal profession. Statistics are on the side of white cisgendered men going to law school, incurring less debt at law school, performing decently in law school, and getting a job after law school. Non-surprisingly, this pipeline leads to more white cisgendered men nominated to the federal bench. Additionally, the federal judiciary is largely composed of men from “elite” law schools, with Yale and Harvard producing approximately one quarter of the appellate bench and all but one current U.S. Supreme Court justice.
When a person does deviate considerably from this “standard” identity, their selection to the Supreme Court risks cries of “identity politics.” President Biden’s promise to nominate a Black woman has already exemplified this reality.
The last woman of color to be nominated to the Supreme Court also experienced this attack. Justice Sonia Sotomayor is the first person to identify as Hispanic and the first to identify as Latina to sit on the Supreme Court. She is only the third woman to serve as a Supreme Court Justice. She brought more overall judicial experience to the Court than any other justice in 70 years preceding her nomination. Opposition to her confirmation accused her of impartiality due to her comments regarding a white man’s inability to relate to the experiences of a “wise latina woman.” Before her appointment, Justice Sotomayor spoke at the University of California School of Law at Berkeley; her speech centered on the premise that a person’s lived experiences shape their work in the legal profession—more diversity in the law will help it evolve. During this speech she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This quote led to op-eds of “identity politics mania” and some tried to explain away her nomination as a “diversity hire.”
Though she ruffled some fragile feathers, Justice Sotomayor made a completely valid point. Her perspective along with the experiences of other persons of color and other members of historically disenfranchised groups are ones that need to be more prominent within the federal judiciary. The Art. III judges decide issues of equal protection regarding race and ethnicity. The Art. III judges decide issues affecting LGBTQ+ rights. The Art. III judges decide issues that apply specifically to persons who do not identify as white cisgendered men. Persons directly affected by a decision should have appropriate representation when the decision is made. This is a principle on which the United States founded itself—“no taxation without representation.” Albeit, an imperfect analogy (the federal judiciary does not generate tax statutes) the underlying premise remains consistent—don’t make decisions for groups of people that do not have a voice at the table.
Currently, the federal judiciary does not adequately represent the population that its decisions affect. Issues affecting rights specific to birthing people, the LGBTQ+ community, and persons of color are featured prominently in federal courts. A Black woman set to replace Justice Breyer is not just “long overdue.” This representation, as well as the inclusion of other diverse identities in future nominations, is necessary to adequately reflect the interests of persons whose rights and livelihood are reliant on decisions made by the judiciary.