Biden has been revolutionary on judicial diversity — states should learn from him

Throughout the 2020 election, President Joe Biden made the nomination of the nation’s first Black woman to the Supreme Court a central pillar of his campaign’s agenda — a pledge that if fulfilled, would cement his legacy as the most prolific judicial activist to occupy the White House in a century.   

As Justice Stephen Breyer is set to retire, we are hopeful, indeed we are confident, that President Biden will keep his promise to the American people to add balance and more fair representation to the nation’s highest court — the same court that upheld “separate but equal” treatment of Americans based on race until the 1950s, and that currently has just one Black and one Hispanic jurist.   

Although our optimism is cautious, the Biden administration’s record in filling vacancies on the nation’s most critical courts with diverse candidates who are qualified beyond dispute is undeniable.  

Already in his first year in the Oval Office, President Biden has appointed more Senate-confirmed judges to the federal bench in a single year than any other president since Ronald Regan, including 24 percent of the total Black women across the entire federal court system. Moreover, nearly 70 percent of the president’s Circuit Court nominees have been people of color, while over 78 percent have been women and over 40 percent have been Black women.  

Of the 42 Biden appointees already confirmed by the Senate, over half were women of color. Those appointees include 2nd Circuit Judge Beth Robinson, the first openly LGBTQ woman to serve on the Federal Court of Appeals, and Judge Tiffany Cunningham, the first Black judge on the Federal Circuit.  

In total so far, the Biden White House has appointed 84 nominees to the federal bench — each and every one of them as qualified as any of their peers. In fact, a recent analysis showed that nearly 60 percent of this administration’s nominees attended a top-14 law school, while over 82 percent of the Black women nominated by the president received the highest possible rating for federal judicial nominees by the American Bar Association, proving definitively that diversity does not come at the expense of quality and experience.  

Despite the hypocritical and empty words of some critics thinly masking their biases behind cries of political gamesmanship, Biden’s judicial diversification efforts are not radical, but a necessary course correction following centuries of inequitable treatment under the law for minorities.   

From law schools to elite “white shoe” law firms like Skadden Arps, from courthouses to parole boards, for too long the cornerstones of our justice system are disproportionately white, and therefore not representative of the American people. Lacking representation is a foundational flaw that exists in every pillar of our nation’s legal structures — a flaw so deep that it has sown seeds of distrust in minority communities for decades. As a result of the unending body of evidence that people of color receive unequal treatment under the law, 87 percent of Black Americans believe they are treated less fairly than their white neighbors.  

To that end, the precedent set by Biden over the last year must be studied and replicated by every governor in every statehouse across the country. As 83 percent of state-level high court judges are white, the Supreme Court is just the tip of the iceberg.   

Take the president’s home state of Delaware as an example. The overwhelmingly Democratic and supposedly liberal ‘First State’ faces staggering and unacceptably low levels of diversity in its judicial ranks. Our analysis of Delaware’s highest courts showed fewer than 15 percent of the justices are Black, despite Black people making up a disproportionate percentage of the state’s prison population. As a matter of fact, right now, Delaware Gov. John Carney (D) has an opportunity to turn his record on judicial appointments around by nominating a Black justice to the Court of Chancery.   

To make sure Carney lives up to President Biden’s footsteps, we are now working side by side with local activists and judicial advocacy groups to fight for diversified courts in Delaware, because we know that leadership at the top does not just filter down naturally. The transcendent change we wish to realize will take an extraordinary effort to accomplish, an effort that every American should fight to make, from city halls to statehouses to the Supreme Court.   

What President Biden understands that the rest of our leaders must also embrace is the underlying issues plaguing our nation’s judicial system are inextricably tied to the staggering lack of equitable racial representation within America’s legal and judicial institutions. And while the Supreme Court sits atop our judicial system, to truly create systemic change means diversifying that system at every level.  

Though progress has been made, there is still much to do to remedy the flaws and shortcomings of our justice system. But as President Biden has demonstrated, diversity must not only be embraced but prioritized and placed front and center when seeking out candidates to walk the halls of justice.  

Al Sharpton (@TheRevAl) is a civil rights activist, founder of the National Action Network, and host of MSNBC’s PoliticsNation. Martin Luther King III (@OfficialMLK3) is a global human rights activist and the chairman of the Drum Major Institute.