Biden Sets New Records for Diversifying Federal Bench (1)

Ketanji Brown Jackson’s appointment as the Supreme Court’s first Black woman justice and first with public defense experience epitomized Joe Biden’s historic expansion of the federal judiciary’s demographic and professional diversity.

Biden appointed more people of color and women than any other president, and prioritized nominees with experience underrepresented among those considered for lifetime trial court and appellate positions.

“It’s the first time any Democratic president in my generation has made it an explicit part of his project to ensure that the federal bench had folks who spent their career advocating for ordinary people and not just for the rich and powerful,” said Jake Faleschini, justice program director at the progressive advocacy group Alliance for Justice.

But Biden’s judicial legacy will be complicated. Jackson was his only Supreme Court appointment. His predecessor and now successor, Donald Trump, had three. Trump forged a conservative high court supermajority that’s overturned abortion rights, expanded gun rights, curbed affirmative action, and weakened the power of regulators.

“It wouldn’t really matter if Biden was able to appoint every judge to the lower courts, because the far-right Supreme Court would still limit what they could do in terms of having an impact on the development of the law,” said John P. Collins, a George Washington University law professor who studies judicial nominations.

Unprecedented Diversity

Biden capped his judicial record with 235 lifetime appointments after his last two district nominees got confirmed Friday. That record will include 187 judges to trial courts, 45 to circuit courts, and one Supreme Court justice.

Recent Democratic presidents have emphasized racial and gender diversity, but “Biden put it on steroids,” said Russell Wheeler, a Brookings Institution scholar who studies judicial nominations.

Roughly 60% of Biden judges are women and almost the same proportion are people of color, Federal Judicial Center data shows.

His appointments include elevating the first Muslim American man and the first Muslim American woman to life-tenured judgeships: Zahid Quraishi to the District of New Jersey and Nusrat Choudhury to the Eastern District of New York. His total appointments of women of color, who make up two-fifths of his judges, is also unparalleled.

There have typically been more men among Black circuit judges. But Biden not only selected more Black circuit judges than any president, but also more Black women.

The first Black woman to join the US Court of Appeals for the Eleventh Circuit, Nancy Abudu, was the deputy legal director for the Southern Poverty Law Center. Arianna Freeman spent her post-clerkship career as a federal public defender in Philadelphia before Biden tapped her to be the first Black woman on the Third Circuit.

New Standard

Biden’s focus on demographic and professional diversity “sets a new standard for future Democratic administrations when it comes to thinking about who makes a good federal judge,” Collins said.

Before being sworn in, Biden urged senators to forward candidates “whose legal experiences have been historically underrepresented on the federal bench,” and emphasized “those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

It’s a move that progressives had rallied for. According to a Bloomberg Law analysis, Obama and Bill Clinton added at least 39 and 31 ex-public defenders to the courts, respectively, but that was over two terms each. Out of Biden’s life-tenured appointees, nearly 50, or 20%, have spent part of their careers as public defenders.

“I don’t think that future Democratic presidents are going to go back to the days of all corporate lawyers and prosecutors and White men,” said Molly Coleman, executive director of the People’s Parity Project. “Those days are over.”

The White House hopes it has shifted how law students approach their careers as they consider potential routes to a judgeship. “Redefining what path you have to trod in order to become a judge is a profoundly positive impact on the judiciary and the legal profession as a whole,” a senior administration official said.

‘Restoring Balance’

Biden and his Senate allies made restoring “balance” to the courts a rallying cry, after Trump staffed the bench with mostly younger, White, and male conservatives.

Trump’s 54 circuit appointments encompassed 30% of that bench. Biden’s 44 appellate judges, not including Jackson after her elevation, comprise almost 25% of active circuit judges, a Bloomberg Law analysis shows. Democratic and Republican appointees are split evenly among active life-tenured appellate judges.

“It was pretty clear, even a year ago, that he was not going to appoint as many circuit judges as Trump did, part of the reason being he just didn’t have the vacancies to fill,” Wheeler said.

What Biden and his allies did accomplish despite inheriting fewer openings than Trump and the rising politicization of the nominations process shouldn’t be discounted, nominations experts said.

Judiciary Chair Dick Durbin (D-Ill.) and Majority Leader Chuck Schumer (D-N.Y.) steered hearings, committee votes, and floor action through an evenly-split Senate and later a slim majority vulnerable to absences and occasional defections. Many nominees were confirmed along party lines or with marginal Republican support.

The senior White House official also pointed to inroads made on the DC Circuit; the Seventh, Second, and Sixth Circuits; and on district courts that are often the public’s first contact with the federal judicial system.

Some progressives see a Senate deal after the election to withhold votes on four circuit nominees as having robbed Biden of additional appellate confirmations. Senate Democrats said they didn’t have the votes to get those nominees through.

Progressives are also split on Biden’s judicial legacy.

“There are a lot of people who I am just so thrilled that we will have on the bench, individual jurists who will make a big difference, and sadly I don’t think that will be enough,” Coleman said.

Others see Biden’s legacy as having “restored balance” to the lower courts and hail Jackson’s appointment .

“I hope it’s something that we’re all really, really really proud of. We should be damn proud of it,” Faleschini said.