As we’ve said here before, President Joe Biden has made great strides to diversify our federal courts. Many of his nominees have been heralded as historic “firsts.” We now have the first Latina to serve as a federal judge in the state of Illinois, Nancy Maldonado, and the first South Asian woman to serve on the United States District Court for the District of Columbia, Loren L. AliKhan.
But what we’ve perhaps failed to mention is just how far we still have to go if our courts are to properly reflect the full diversity of our nation.
When all vacancies are filled, our federal courts have 870 judges in total:
- One Supreme Court with nine justices,
- 13 circuit courts with 179 judges,
- 94 district courts with 673 judges and
- One Court of International Trade with nine judges
The vast majority of federal judges are the district judges that preside over trial courts, i.e. the courts where most citizens come face-to-face with a judge. And those trial courts can cover large regions of a state or even an entire state. New York, for instance, has four district courts while the state of Connecticut has just one.
Strikingly, of the 94 district courts across our country, 25 have never had a non-white judge.
Think about that. In a quarter of our country, every single case brought to a federal court has only ever been heard by a white judge. That includes mostly white states like Alaska, Idaho, Iowa, Maine, Montana, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, Utah, Vermont and Wyoming. But it also geographically includes half of Kentucky, most of upstate New York, half of Pennsylvania, half of Virginia and half of West Virginia. A recent Bloomberg report profiled the Southern District of Georgia, where nearly a third of residents are Black, but the court remains all white.
One of the major drivers of our demographic lag has been that the pipeline to becoming a judge has traditionally been very narrow. For the longest time, most judges have come from legal careers at large corporate law firms or prosecutors’ offices, while other legal backgrounds — like legal aid offices that serve the common good and are more often populated by people of color — were not seen as viable paths to a judicial nomination. This approach privileged not only white lawyers, who had greater access to the traditional career paths, but also more men (three district courts in the country have never had a female trial judge).
That’s why Alliance for Justice has been championing the need for both more demographic diversity and more professional diversity. That includes more public defenders and lawyers who have fought to protect civil rights, voting rights, workers’ rights, consumers’ rights and more. If we want to see more women, LGBTQ+ people, people with disabilities and people of color on the bench, we have to look to these movement lawyers to find them.
Fortunately, many of these all-white districts have vacancies that Biden and the Senate could fill before the end of 2024. A few are in states with two Democratic senators who should be willing partners in advancing diverse nominees.
The others are in states where a Republican senator holds a veto. Traditionally, Republicans have advanced nominees who are predominantly white and male. Of former President Donald Trump’s 226 appointed judges, 85% were white and 76% were male. But Republican Sens. Mitt Romney (Utah), Lisa Murkowski (Alaska) and Susan Collins’s (Maine) yea votes for Justice Ketanji Brown Jackson suggests that they could perhaps be persuaded to help confirm trial court judges in their respective states to better reflect our collective diversity. They voted for one non-white Democratic appointee. Why not others?
As for the rest of the Republican caucus, they could continue to keep their districts all-white for years to come if nothing is done to repair the broken blue slip process. Sen. Dick Durbin (D-Ill.) — chair of the powerful Senate Judiciary Committee — will surely keep that in mind when he decides if that old senatorial privilege should give way to the needs of the citizenry to see themselves reflected in the literal rule of law. Durbin has already been reminded of the risks by the Congressional Black Caucus and Derrick Johnson of the NAACP. All indications are that he’s listening.
We deserve a country where the administration of law reflects not just our hope for justice, but the beauty of our common struggle against racial hierarchy. Such a country will never be fully realized until our full diversity can don the black robes of an impartial judiciary. Indeed, if we want to get to the point where diversity is the norm on our courts and no longer a novelty, we must be intentional about reaching the day where we can say every court is magnificently diverse.
Unfortunately, we still have a long way to go.
Rakim Brooks is a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.