Biden’s attempts to diversify federal courts can’t come fast enough

Last week, President Joe Biden rekindled the priority of diversifying the federal judiciary. Announcing his first slate of nominations, President Biden nominated a diverse group of 11 candidates. Three were African-American women nominated for appeals courts and another was the first federal judge in U.S. history who is a Muslim. And, aside from race and ethnicity, Biden drew from public defenders, military judges and other public servants — a broader range of legal expertise and life experience than did his predecessors, who tended to favor prosecutors and partners from white-shoe law firms.

In stark contrast, of President Donald Trump’s 234 appointments to the federal bench, only 4 percent were Black and 4 percent were Hispanic, while 13.4 percent of the U.S. population are Black and 18.5 percent are Hispanic or Latino. And 76 percent of Trump’s appointments were men. In this era where we find ourselves on the defensive about the values of pluralism and equality, such troubling demographics raise the risk of a judiciary that reflects the values of the past rather than one that is capable of meeting the needs of today.

One of Biden’s picks, Candace Jackson-Akiwumi, will become the only Black woman on the Seventh Circuit Court of Appeals, sitting among 11 judges.  This move echoes history.  Although the first Black man was appointed to the federal appeals bench by President Truman in 1949, it was not long ago that President Clinton integrated the U.S. Court of Appeals for the 4th Circuit with the appointment of Roger Gregory in 2000. Until that historic moment, the all-white circuit made decisions that affected the lives of more Black Americans than any other circuit. Facing Republican opposition, President Clinton used a recess appointment to do so and President Bush later wisely renominated him to the post.  

When testifying before the Senate Judiciary Committee, some judicial nominees like to portray their role as akin to an umpire calling balls and strikes, as Chief Justice John Roberts famously said. Despite these professions of neutrality, however, study after study shows that a decision maker’s background matters.  Indeed, with coauthors, one of us has conducted a survey experiment exploring 18 police investigative practices, such as obtaining records of online purchases or searching the trunk of your car. White Americans were substantially less likely to find that the police violated reasonable expectations of privacy. The finding is not surprising given that, for centuries, white and non-white Americans have had vastly different experiences with policing. The social science literature regarding the effects of race on judicial decisions is complex, but studies have shown that it matters, especially for cases where race is salient. 

When it comes to interpreting the broad, majestic language of the Constitution’s protection of liberty and equal protection of the law, background and experiences shape the methodologies and arguments judges are willing to entertain. Will a judge care only for cool logic and the historical utterances of generations past, or will she ensure that those words can serve the needs of the living?

In coming years, the Federal judiciary will resolve disputes where a diverse institution can make a big difference: the rights of sexual minorities, the rights of disfavored believers, voting laws, employment discrimination, affirmative action in education, and the right to reproductive autonomy and women’s rights generally. In a country where the median white household holds 7.8 times the wealth of the median Black household, even facially-neutral issues like health insurance coverage and perhaps even a wealth tax have important racial overtones. Federal judges have repeatedly sought to undermine the Affordable Care Act, cancelling coverage for millions of Americans, without having to think about how their own friends and family will maintain coverage. Whether they hail from privileged backgrounds or have known deprivation may affect how receptive they are to assertions of legislative power to close the wealth gap and ameliorate the effects of poverty.     

What Biden is doing is an excellent start and we hope he continues to broaden his search to include other public servants, including civil rights advocates, academic leaders and elected officials with distinguished records. Even more, structural changes could do a better job of ensuring that judges don’t merely impose the values of a previous generation. Term limits for federal judges would ensure more regular turnover. Expanding the size of the Supreme Court to 10, 12, or even 15 could also create more opportunities for a broad range of experiences while limiting the power of any faction to do damage to the people’s priorities.  

Before rising to the bench, Roberts himself once argued for judicial term limits, noting that “The Framers adopted life tenure at a time when people simply did not live as long as they do now.” And in 2019, the U.S. Judicial Conference, established by statute as a non-partisan policy-making body of the federal courts, recommended creating dozens of new judgeships. A combination of presidential priority and court reform would allow us to accelerate progress in diversifying the judiciary to reflect America.

Robert L. Tsai (@robertltsai) is a professor at Boston University School of Law, and author of “Practical Equality: Forging Justice in a Divided Nation” (2019). Christopher Robertson (@ProfCRobertson) is N. Neal Pike Scholar of Health and Disability Law and professor at Boston University School of law. He is the author of  “Exposed: Why our Health Insurance Is Incomplete and What Can Be Done About It” (2019).