Courts that look like America: Will gains be lost under Trump?

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Courts matter—look no further than President Trump’s “travel ban” executive orders, which have been stalled by federal district court judges in three different jurisdictions and by a three-judge federal appellate panel. And as the public considers the importance of the Supreme Court and legislators weigh Trump’s nominee to it, Neil Gorsuch, many journalists, including those with the New York Times and Washington Post, have sought to determine the possible ideological impact of Trump’s appointments to the lower federal courts.  Considering the 18 vacancies on U.S. Courts of Appeals, Washington Post’s analysis indicates that with the exception of the Second and Third Circuits “Trump’s nominations… will not do much to alter the ideological balance on individual courts.” A Ballotpedia analysis shows that federal judges likely to retire (or take senior status) over the next four years were nominated by a Republican president, “lessening the effect of the resulting vacancies on the ideological balance of individual courts.”

Few analyses, though, are focused on how Trump’s decisions will affect demographic diversity within the federal courts. At the end of Obama’s presidency, the U.S. had hit a milestone: only half its federal judges were white men (as the New York Times vividly displayed in February). Legal scholar Sherrilyn Ifill neatly summarizes why the inclusion of women and people of color in these roles matters:

The first, and I think widely accepted, view is that diversity on the bench promotes public confidence in the legitimacy of the courts. The second reason… is a bit more controversial but I think it is important to discuss it openly. That is the view that diversity on the courts enriches judicial decision-making, that the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decision-making, especially on our appellate courts.

Our nation’s federal courts make rulings on virtually every issue that is important to Americans: immigration, corporate malfeasance, medical malpractice, unsafe products, illegal working conditions, civil rights violations, and environmental pollution to name a few. And because the Supreme Court hears only about 100 of the more than 7,000 cases it is asked to review every year, decisions made by the twelve Circuit Courts of Appeals are the last word in thousands of cases—some 54,000 cases just last year.

It is impossible to know when and how a judge’s life experiences will contribute to deeper and more multifaceted understanding of the facts in these 54,000 cases, though it is not hard to imagine. Studies show, for instance, that when a three-judge panel ruling on sex discrimination cases includes even a single woman judge, the court is more likely to rule in favor of the plaintiff. This effect is present in cases on issues which female judges “possess information that their male colleagues perceive ‘as more credible and persuasive’ than their own knowledge.” Diversity among judges means making our federal courts look more like the country they sit in judgment of and it can enrich decision-making by bringing new life experiences to the bench.

Of course, the 50% mark is important, but it obscures differences by jurisdiction and type of court. For example, white men comprise 59% of sitting federal appeals court judges, but 80% of the Eighth Circuit Court of Appeals judges (the least diverse appeals court in the country). Of the currently sitting 232 federal appeals court judges, 26% are women (among them, President Trump’s sister Maryanne Trump Barry, a senior judge on the U.S. Court of Appeals for the Third Circuit).  It has been some 35 years since women could boast being nearly half of all law school graduates, but we are still struggling to maintain a quarter at the appeals court level. Further, just 10 of the 232 (4% of the total) are women of color, and of those, half sit on just one appeals court—the Ninth Circuit. Of that total 232, 10% (24 judges) are men of color. Five appeals courts have no women of color, and one has no men of color.

Much has been made of Senate Republicans’ refusal to advance the Obama-era nomination of Merrick Garland to the Supreme Court (and Democrats vow to filibuster Gorsuch’s nomination), but many appeals court nominees, even those supported by Republican senators, have languished on the Senate floor, too. Many would have advanced judicial diversity.  They included Rebecca Haywood, who would have become the first African-American woman on the Third Circuit, Jennifer Puhl, who would have become only the second woman ever to serve on the Eighth Circuit and the first woman to be an Article III judge in North Dakota, and Lucy Koh, who would have been the first Korean-American on any Circuit Court.

All this leaves the Trump administration with 18 openings. Two openings in the Eighth Circuit provide an opportunity to improve its “least diverse” standing. The Third and Fifth Circuits both have three openings and no current women of color.

In making its picks to fill these vacancies, the Trump Administration—if it acts according to custom–will be constrained by the Senate, specifically by the views of senators on the Judiciary Committee and the home-state senators where circuit seats are situated.  Specific circuit seats are historically tied to a state within that circuit, and the Senators from those states (most importantly, but not exclusively, those aligned with the President’s party) recommend candidates to the White House for consideration. So, a Senator’s vetting process is crucial for determining the diversity of candidates who will move forward. In Texas, where the Fifth Circuit openings originate, Senators Cruz and Cornyn will use a Federal Judicial Evaluation Committee (with members they have appointed) to vet the six candidates rumored to be under consideration (all of them men).

According to Brookings, “Senate Judiciary Committee leadership says it will continue not processing judicial nominations unless both home-state senators of either party return favorable ‘blue slips’ approving a nominee. Home-state Democratic senators may hard bargain with the administration about nominees, as did Republican senators during the Obama administration, creating more and longer nominee-less vacancies.”  If continued, this “blue slip” process will give Democratic senators some power over appointments, since 12 of the 18 vacancies are in states with at least one current Democratic senator. Two of these 12 vacancies are on the “least diverse” Eighth Circuit, where Minnesota’s two Democratic senators (who both sit on the Judiciary Committee) will have some power to change that statistic.

While the two candidates making the final cut for Trump’s Supreme Court nomination were conventional, conservative white men, arguably bringing little in the way of different life or professional experiences to the Supreme Court, it is not yet clear how the White House will process lower court appointments and who will be influential.  At the Cabinet level, public and legislator pressure was at least partially responsible for the withdrawal of Secretary of Labor nominee Puzder and push-back regarding a Latino-free cabinet may have influenced the choice of successor Alex Acosta. If the public and legislators demand diversity, that pressure could help determine the composition and collective wisdom of our lower federal courts.

Debra Fitzpatrick, Center on Women, Gender and Public Policy, Humphrey School of Public Affairs and Carol Chomsky, Professor of Law, University of Minnesota

— Photo by justwhack