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Abstract

Kevin R. Johnson, How Political Ideology Undermines Racial and Gender Diversity in Federal Judicial Selection: the Prospects for Judicial Diversity in the Trump Years, 2017 Wisconsin Law Review 345 - 365 (2017) (102 Footnotes Omitted) (FULL ARTICLE)

The process for the nomination and confirmation of federal judges has long been a topic of considerable commentary and controversy. That almost unquestionably will continue to be the case during the Trump Administration, with the new president coming to power following a turbulent presidential campaign in which the composition of the Supreme Court was a central issue of divergence between the candidates.

Over the past few decades, partisan politics have contributed to a virtual explosion of divisiveness in the Supreme Court selection process, the most high profile, high stakes stage for federal judicial selection. The growing backlog of judicial nominations demonstrates how the confirmation process has deteriorated in the modern era. When taking office, President Donald Trump had more than one hundred judicial vacancies to fill, nearly double the number of openings that President Barack Obama had when he became president.

The title of one law review article--"Judicial Selection as War"--reveals much about the nature of the contentiousness of the modern federal judicial selection process. The character of the conflict is not new. More than two decades ago, Stephen Carter wrote a bit more gently of "the confirmation mess."

The record-long Senate inaction on President Obama's nomination of distinguished court of appeals Judge Merrick Garland to the vacancy left by the untimely death of Justice Antonin Scalia is simply the latest chapter in a turbulent Supreme Court confirmation process. The tumultuous hearings that surrounded Robert Bork and Clarence Thomas, both conservatives nominated by Republican presidents, also stand as milestones in the contemporary history of contentious Supreme Court confirmation battles.

Political divisiveness in the confirmation process based on ideological differences in a deeply polarized United States Senate likely will continue to afflict federal judicial selection and confirmations for the foreseeable future. Such tensions will almost certainly have lasting reverberations on another important concern that figures prominently in federal judicial selection in the modern era, as well as in all major institutions in modern American society--the overall racial and gender diversity of the federal judiciary.

Efforts to diversify the federal judiciary--and transform the federal courts away from being exclusively the domain of white men--began in earnest with the modern civil rights movement. In 1967, President Lyndon Johnson nominated the first African-American Justice, Thurgood Marshall, to the Supreme Court. That path-breaking nomination represented a critically important step toward full inclusion of African Americans in American social life. For years, Supreme Court watchers mulled over the possibility and ramifications of the appointment of the first Latina/o Justice. President Obama ultimately nominated, and the Senate confirmed, Sonia Sotomayor as the first Latina Justice--and the first woman of color--on the nation's highest Court. Given the dramatic increase in the Asian American population in the United States over the last fifty years, one would expect the nation to see the nomination of the first Asian American Justice to the Supreme Court in the not-too-distant future.

Although appointments to the Supreme Court receive the most public attention and political scrutiny, the vast majority of federal judges hear cases at the district court and court of appeals levels. The lower courts handle most of the federal judicial business. Indeed, recent years have seen a significant decline in the number of cases accepted for review by the Supreme Court. Similar to the high Court, the lower federal courts have slowly become more diverse--racially and gender-wise--in the modern era.

Many observers would agree that continuing the efforts to increase racial and gender diversity on the federal bench--as well as in all of American society-- is a laudable social goal. Such diversity, among other things, enhances the perceived legitimacy and representativeness of the federal justice system. Today, the presence of judges who in the aggregate mirror society positively shapes popular perceptions about the legitimacy of the American courts.

Generally speaking, efforts to increase the diversity of the federal bench in the contemporary era fail to generate the deep political divisions that ideological differences do. One would expect a nominee's views on abortion, affirmative action, or gun control, to offer a few modern examples, to be a much greater source of contention in modern times than a nominee's racial ancestry or gender. However, in light of the differing ideological tilts of the two major political parties in the United States, one might predict that Republican and Democratic presidents would place different weights on the relative importance of diversity in judicial selection. Consistent with that intuition, President Obama, a Democrat, nominated judges who have added racial and gender diversity to the federal bench. That includes the appointment of the first woman of color to the Supreme Court as well as another woman, Elena Kagan.

Despite the increases in diversity in judicial selection in recent years, considerable work remains to be done to more fully diversify the federal judiciary. Although slowly increasing over time, the number of judges from diverse backgrounds is far from what one might hope given the nation's increasingly diverse population. The federal courts continue to have relatively few African-American, Latina/o, Asian-American, and Native-American judges. "The data ... show that men--and [w]hite men especially--have historically dominated and continue to dominate the federal judiciary." Moreover,

[R]ecent figures for the federal bench show[] that of the active federal judges on the courts (including bankruptcy and magistrate judges), 6.8% are African American, 5.3% are Hispanic, and 1.1% are Asian American. Only 26% of the active appellate judges are women; and only 25% of district court judges are women.

There is reason to believe that President Trump will not make increasing diversity on the federal bench, including the Supreme Court, a top priority in judicial nominations as President Obama did. Rather, judging from the two lists of possible nominees to the Supreme Court that Trump released during the presidential campaign, a commitment to a tried-and-true conservative judicial philosophy will most likely be the touchstone of the Trump Administration's judicial appointments. Such an approach long has been a staple of Republican presidents, at least since Richard Nixon campaigned for president in 1968 against what he alleged was the ultra-liberal decisions of the Warren Court--especially on school segregation (and busing as a remedy to segregation) and criminal procedure matters. Ironically enough, that Court was led by Chief Justice Earl Warren, who was appointed by Republican President Dwight Eisenhower.

Those interested in increasing the diversity of the federal judiciary might wonder about the intersection of racial and gender diversity and political ideology in the judicial nomination and confirmation process. One might opine that, as a matter of practical politics, more conservative minority justices would have an easier road to Senate confirmation than more liberal ones, who might be expected to face grueling challenges to their political ideology. With a relatively conservative minority or woman nominee, senators of both political parties might find something attractive. That, of course, has not always been the case. Conservative African American Clarence Thomas, for example, faced a famously tumultuous confirmation process. That, however, appears to have resulted largely from the serious--and sensational--allegations of personal misconduct leveled against him.

Building on the work of, among others, Sylvia Lazos, this Essay analyzes the confluence of racial and gender diversity and political ideology in the modern federal judicial selection and confirmation process. It contends that ideological litmus tests routinely applied with vigor by Republican presidents and senators politicize--and polarize--the confirmation process and have created a significant barrier to diversifying the federal judiciary. A less politically and ideologically divisive climate in the Senate--and Congress and the nation as a whole--likely would facilitate increasing the racial and gender diversity of the federal bench. This Essay concludes by considering the possible adverse consequences of a Trump presidency on the diversity of federal court judges.

Part I of the Essay looks briefly at the benefits of a diverse federal judiciary and outlines the conscious, and relatively successful, efforts of President Obama, the nation's first African-American president, to increase racial and gender diversity.

Part II analyzes the diversity costs of an ideologically-driven and contentious confirmation process in the United States Senate.

Finally, Part III considers President Trump's likely commitment (or lack thereof) to diversity in his federal judicial appointments.