Will the Senate Confirm America's First Muslim Federal Judge?

Abid Qureshi’s nomination caps Obama’s legacy of diversifying the judiciary, but the Senate seems unlikely to act on it.

President Obama quietly made history on Tuesday by nominating Abid Qureshi, a prominent Washington, D.C., lawyer, to serve on the U.S. District Court for the District of Columbia. Qureshi, if confirmed by the Senate, would be the first Muslim federal judge.

Obama’s announcement was sparse and formulaic. “I am confident he will serve the American people with integrity and a steadfast commitment to justice,” he said in a brief statement. Attached was a synopsis of Qureshi’s respectable credentials—an Ivy League legal education, a career at the prestigious Latham & Watkins law firm in D.C., and service on local bar association committees. Unsurprisingly, unmentioned went his faith.

In years past, a prospective federal judge’s religious beliefs would probably be unremarkable except as a trivia question. But Qureshi’s nomination carries special significance in this political moment. Shortly after securing the Republican nomination during the primaries in May, Donald Trump accused federal judge Gonzalo Curiel, who is presiding over litigation against him and his defunct Trump University endeavor, of bias because Curiel is “Mexican.” (He was born in Indiana.)

“I’m building a wall, it’s an inherent conflict of interest,” he subsequently said.

A week later, when asked by CBS’s John Dickerson if Trump’s proposal to ban Muslims from entering the United States meant Muslim judges would be biased against him, Trump replied, “Yeah, that would be possible, absolutely.”

“Isn’t there sort of a tradition in America that we don’t judge people by who their parents were and where they came from?” Dickerson then asked. “I’m not talking about tradition,” Trump responded, “I’m talking about common sense, okay?”

Bigoted as it was, Trump’s line of reasoning also reflected a long-term shift in the demographics of American courts: Many of the nation’s federal judges, especially those in appellate courts and on the Supreme Court itself, now come from different faiths than he does.

Aside from the occasional Catholic from Louisiana or Maryland, the federal judiciary consisted almost entirely of white Protestants for the first century of its existence. Only in 1900 did William McKinley nominate Jacob Trieber, a Prussian-born Jewish immigrant, to a federal district judgeship in Arkansas. A staunch Republican and a self-educated attorney, Trieber apparently encountered no resistance during his confirmation and forged an interesting civil-rights legacy during his 27-year tenure. Other judges who hailed from religious minorities followed slowly, including roughly a dozen Mormon federal judges throughout the latter 20th century. (In a unique twist on the “Jewish/Catholic seat” idea, the Utah Supreme Court traditionally had at least one non-Mormon justice until 2000.) More recently, Sri Srinivasan, a federal judge on the D.C. Circuit and a likely future Supreme Court nominee, took his oath of office on the Bhagavad Gita, a book of Hindu scripture.

Religion did, however, play a major role in shaping Supreme Court appointments. Louis Brandeis’ raucous confirmation to be the first Jewish justice in 1916 came after days of Senate committee hearings, the first of their kind for nominations to the high court. By the mid-20th century, the Supreme Court had both a “Jewish seat,” occupied successively by Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Abe Fortas, as well as a less consistent “Catholic seat,” held by Pierce Butler, Frank Murphy, and finally William Brennan. Neither seat exists today because the eight current justices—as well as Antonin Scalia, who died in February, and Merrick Garland, whom Obama nominated to replace him—are now all active or lapsed Catholics and Jews.

The trend towards a more diverse judiciary seems unlikely to reverse. In June, the White House said it had “appointed 120 minority federal judges” over the past seven years, and claimed that for the first time, a majority of judges on the powerful circuit courts of appeal are women, people of color, or both. For most Americans, the change will be welcome or unnoticed. But for Trump, a judiciary that resembles people other than him will likely be more of an obstacle than an achievement.

Qureshi still faces an uphill battle for confirmation in the Senate, where GOP senators have effectively halted efforts to confirm Obama’s judicial nominees ahead of the November election. If legislators don't act before the election or during the lame-duck session between November and January, his nomination will automatically lapse when Obama's term ends on January 20, 2017.