The identity of Justice Ruth Bader Ginsburg’s successor is now in the forefront of the news. The import of that appointment is self-evident. But as the gravity of that singular decision holds the public’s focus in its orbit, the American people must not lose sight of the entirety of the federal judiciary that is substantially controlled by whomever is president.
Over the past four years, the current president has had a tectonic impact on the judiciary, shaping it ideologically and demographically in his own image. The president has already placed 218 judges, all with lifetime appointments, on America’s courts—25 percent of the total federal bench. A partner in this transformation, the U.S. Senate has worked at a breakneck pace, at times confirming more than 10 judges in a day.
The judiciary crafted over the past four years does not look like America. Since January 20, 2017, the president has appointed 55 appellate judges, two of whom now sit on the Supreme Court and the remaining 53 on circuit courts of appeal. Of those 55 judges, 85 percent are white and 80 percent are male. Not one of those judges is Black. More than 90 percent were raised or currently identify as Christian. American jurisprudence will be influenced for years by these judges whose median age is just 49—not at the time of appointment, but today. Several of them are still in their 30s. These appointments now comprise nearly 30 percent of the total federal appellate bench.
This is in stark contrast to earlier strides to diversify the judiciary, and it reflects an unapologetic preference for the homogeneity of what many Americans hoped was a bygone era. For most of the country’s history, state and federal courts were 100 percent white and male. But over the past century, the previously impenetrable judiciary slowly saw an increase in racial, gender, religious, and LGBTQ diversity. In the federal courts, appointments began to increase in diversity in 1979 under President Jimmy Carter, and with efforts compounded by presidents Bill Clinton, George W. Bush, and Barack Obama, federal judges were 71 percent white and 73 percent male by the end of 2016. Since then, judicial appointments have taken a steep racial turn. In 2017, the current president’s first year in office, 90 percent of the judges appointed to the federal courts were white. That unrelenting course has continued, and as of August 2020, according to the Federal Judicial Center, cumulatively 80 percent of all federally appointed judges were white.
This historic reversal has caused the judiciary to become more demographically isolated from the population it serves. We are roughly half female and half male; 4.5 percent identify as LGBTQ. We speak more than 350 languages, and nearly all Americans are descendants of immigrants who come from every one of the 194 other countries in the world. Racially, we are approximately 60 percent white, 18.5 percent Hispanic/Latino, 13.5 percent Black, 6 percent Asian, 1 percent Middle Eastern, and 1 percent Native American. Within this mix are the millions of Americans who are multiethnic, and this population is growing by the day. In 2015, 14 percent of babies born in the United States were multiracial, triple the rate of 1980. Although the majority of Americans self-identify as religious (primarily Christian at 65 percent, followed by Judaism, Islam, Buddhism, and Hinduism), roughly one-quarter do not.
For the most part, the judicial appointments over the past four years happened quietly, eclipsed by the daily cacophony of controversies and crises reported by the media. Even in less tumultuous times, coverage of judicial nominations is minimal, as Senate confirmation hearings can be monotonous, and the individuals being vetted are largely unknown to the public. Americans are more familiar with members of the legislative and executive branches of government because those officials regularly engage the public through the press and social media and because their jobs are wholly dependent on votes. Judges, by contrast, serve the public discreetly, through written legal opinions crucial to the parties or related industries, and largely inconsequential to everyone else. Unless you are involved in civil or criminal litigation, your only interaction with the judiciary might be when you are called for jury duty.
There is a high price to pay, however, for complacency about the judges who are appointed to the courts. As a co-equal branch of government, the judiciary has the power to invalidate unconstitutional laws and orders enacted by either of the other two branches, thereby serving as a fundamental check on abuses of executive power and legislative overreach. Notwithstanding that power, in America’s democracy, it is the other two branches of government that select the country’s federal judges, the executive alone that nominates, and the Senate that decides whether to confirm the president’s selection. This interdependent power is, quite simply, both the beauty and the frailty of our system of checks and balances. It underscores that the judgment of those selecting the judges—foremost the president and each senator—is as crucial in this process as the wisdom of judges themselves.
But as of late, that wisdom has not produced a judiciary many Americans will feel they can fully trust. Each person is a complex combination of race, gender, geography, age, marital status, religion, experience, education, wealth, health, culture, political affiliation, beliefs, values, fears, sexuality, and countless other factors. Identity is the lens that filters everything and everyone we encounter. Studies have repeatedly shown that people believe their own judgments are objective, impartial, and correct, and in turn believe that others like them—in both appearance and experience—are more ethical, moral, and trustworthy. That means Americans are more prone to have confidence and trust in the judicial branch of government if it includes judges who share their physical traits, experiences, or other aspects of their identity. It is hard to underestimate the value of a trusted judiciary. At its core, that trust is the only vaccine for anarchy.
For this reason, a diverse judicial branch is not a superficial optic. Judges must engage in balancing tests, considering what a “reasonable” person would believe, what norms exist in a community, and what rights society is willing to protect. These inquiries necessarily involve value judgments that are colored by life experiences. A judiciary that includes only perspectives of the dominant class will likely yield judgments that reinforce the experience and the values of the majority.
That is not a recipe for protecting the individual liberties that are at the core of the Constitution. The public might also feel skeptical about the judiciary’s objectivity and willingness to independently check the power of the other two branches of government if the judges are a demographic and ideologic reflection of both the president and a largely homogenous Senate majority. Diversity is America’s natural state, and when that diversity is not mirrored in places of power such as boardrooms and our courts, it can breed feelings of distrust, intentional exclusion, futility, lack of meritocracy, and, for some, contempt. A judiciary that lacks diversity invites the public to question why that is the case. If Americans believe that the process for selecting judges is fundamentally unfair, the destabilizing danger is that the courts become perceived as illegitimate.
A judicial robe is a powerful and provocative symbol of justice in the United States. If America wants federal courts that instill trust and reflect democratic principles, it must work harder to ensure that the people who wear those robes resemble the full range of people in America’s communities.