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Trump Nears Post-Nixon First: No Black Circuit Judges (Corrected)

June 24, 2020, 8:50 AMUpdated: June 25, 2020, 5:44 PM

Donald Trump is on track to be the first president since Richard Nixon to go a full first term without selecting a Black nominee for a federal appeals court.

Just one of Trump’s 53 confirmed appeals court judges is Hispanic and none are Black. That compares to about 27% of President Barack Obama’s and roughly 15% under President George W. Bush, according to a Bloomberg Law analysis of Federal Judicial Center data.

Trump, however, has exceeded both of his immediate predecessors in the percentage of Asian American appointees to federal appeals courts, which explains why about 15% of his appellate appointments have been people of color, compared to roughly 35% under Obama and 15% under Bush.

The figures for Obama and Bush, a Democrat and Republican, respectively, cover their two terms in office. But Trump has appointed nearly as many judges to the appellate courts with his first term not yet complete as they did overall. Every president since Nixon, who took office in 1969, appointed a Black appeals court judge in their first four years save Gerald Ford, who served a partial term, and Trump.

A nearly-complete demographic profile of Trump’s first-term picks is possible following the Senate’s confirmation Wednesday of Cory Wilson to the U.S. Court of Appeals for the Fifth Circuit. Wilson was Trump’s 200th judicial confirmation overall and is expected to be the last to a federal appeals court before the election.

Trump has already filled nearly 30% of federal appeals court seats, stocking them with conservative stalwarts and stalling progress under his two predecessors in adding more Hispanic and Black judges.

Considerations about diversity mattered less to Trump than ensuring potential nominees were philosophically reliable, Russell Wheeler, a Brookings Institution visiting fellow who studies judicial nominations. “Their main goal was to get conservatives to the court of appeals, and conservatives in the legal community tend to be White for the most part,” Wheeler said.

A Republican-controlled Senate under Majority Leader Mitch McConnell (R-Ky.) and some procedural changes have also helped Trump appoint 143 district court judges, two international trade court judges and Neil Gorsuch and Brett Kavanaugh to the Supreme Court. The remaining judicial vacancies left unfilled are all at the district court level.

Not a Factor

Conservatives reject the idea that race should be a factor in considering judicial appointments.

“The most important thing about a judge is the kind of judge they are, not their sex or their race,” said Thomas Jipping, deputy director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow.

The Trump administration isn’t doing the kind of outreach past presidents have undertaken to find diverse candidates, said Hilary O. Shelton, the NAACP’s senior vice president for advocacy and policy.

Shelton said the NAACP has worked with past administrations, including Bush and Obama, to identify diverse nominees, but their calls to work with the Trump administration have been ignored.

“Not nominating a single African American to the appellate courts is absolutely outrageous,” Shelton said.

A federal bench that doesn’t reflect the diversity of the population has consequences, he added.

Of the 179 active judgeships at the appellate court level, 18, or roughly 10%, are filled by Black judges, according to the FJC data. Blacks constitute roughly 13% of the U.S. population.

“We are a very diverse country. Our communities are wonderfully diverse,” Shelton said. “But with that in mind, those who are interpreting and enforcing the law aren’t reflective of that diversity, and as such, you end up with some very dangerous and disturbing decisions.”

The White House didn’t immediately respond to a request for comment.

Nominating diverse judicial candidates isn’t a guarantee of Democratic support, either.

Democrats launched the first-ever filibuster of a lower court nominee in 2003 against Miguel Estrada, a Honduran immigrant nominated to the U.S. Court of Appeals for the District of Columbia Circuit, in part due to fears that he was being groomed by Republicans for the Supreme Court. For nearly two years, Senate Democrats also held up another Bush nominee to the D.C. Circuit, Janice Rogers Brown, a Black California state Supreme Court justice.

Similarly, even when Trump picks diverse candidates, Democrats still vote against them more than judicial nominees of their presidents, noted Jipping, who formerly served as Senate Judiciary Committee chief counsel and was a longtime staff member for former Sen. Orrin Hatch (R-Utah).

Nominees Available

Trump did have a pool of potential circuit court nominees available within the federal judiciary.

There are about a dozen Blacks appointed by Trump’s Republican predecessors serving as district court judges, although only one was under age 50 at the time Trump took office, according to the FJC data. Trump, like his predecessors, has preferred appointing relatively young appeals court judges who are more likely to have long tenures.

Nine more Black federal trial court judges have been confirmed since Trump took office, giving him a potential list to choose from for elevation to the appeals court if he has a second term.

Trump has nominated more people of color to district court seats, including Roderick Young, a Black U.S. Magistrate Judge scheduled to appear before the Judiciary Committee on Wednesday for a seat in the Eastern District of Virginia.

Some Increases

While Trump’s picks generally tend to be male and White, he has increased diversity in one area: adding more Asian American judges at the appellate level.

Of the 11 active Asian American appeals court judges, Trump has appointed seven. Obama appointed four and Bush didn’t appoint any. (Republicans filibustered another Obama Asian American appellate nominee, Goodwin Liu, who now serves on California’s state supreme court).

Trump’s appointees include Amul Thapar, Neomi Rao, Patrick Bumatay, Kenneth Lee, James Ho, John Nalbandian and Michael Park.

Trump’s appointments, however, have decreased net racial diversity on four of the 13 federal courts of appeals, according to analysis by Rorie Solberg, a political science professor at Oregon State University who tracks judicial diversity with an eye toward how nominations impact each court.

“Given the patterns that have been in effect with each president doing better than the next, it isn’t particularly impressive, but it’s not particularly unexpected,” Solberg said of Trump’s record. “This was never a priority.”

And while Trump’s appointments have increased the number of women on three courts of appeal—the Eleventh, Tenth and Ninth—they’ve decreased the number of women on five—the Second, the Third, Fifth, Sixth and Eighth.

That goes against a pattern Solberg has seen since Bill Clinton—who appointed Trump’s sister, now retired Third Circuit Judge Maryanne Trump Barry—where each president has generally increased diversity on the appeals courts.

“George W. Bush actually did care about diversity. If for no other reason than he was trying to make the Republican Party a bigger tent,” Solberg said.

(Corrects the number of appeals courts with fewer women.)

To contact the reporters on this story: Madison Alder in Washington at malder@bloomberglaw.com; Jasmine Ye Han in Washington at yhan@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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