As the nomination of Ketanji Brown Jackson to the Supreme Court has ignited a discussion about the historic lack of diversity on the nation’s highest court, her ascendance has also renewed focus on the absence of Black judges on the federal judiciary’s lower courts.
Of the 3,852 people who have been confirmed as federal judges, a analysis of data from the Federal Judicial Center shows that 240 of them — 6% — have been Black. Seventy-one of them have been Black women.
More than three-quarters of all the judges have been White men.
A growing bench of Black women in federal courts
While Black women have been vastly underrepresented in the judiciary system, 57 of the 71 Black women confirmed to the federal courts are still actively serving as judges.
And while strides have been made in recent years to improve the demographic makeup of the federal bench, the judiciary still skews dramatically toward White, male judges, especially when compared to the rest of the country. Almost 80% of all Article III judges — the federal judges who are nominated by a US president and confirmed by the US Senate — are White, and 71% are men, with large gaps persisting in Latino, Black and women’s representation in the federal courts, the data shows, despite Black Americans accounting for 12.4% of the US population.
That lack of representation is an obstacle for aspiring judges of color in a career pipeline when it comes to openings on the Supreme Court — while also having a negative impact on a judicial system in which judges are expected to make fair and impartial decisions on issues affecting an ever-diversifying country.
“One thing that we know erodes public confidence in the judiciary is when judges and other judicial actors (like juries) fails to reflect the diversity of the citizens who rely on our courts to mete out impartial justice,” Stacy Hawkins, vice dean and professor at Rutgers Law School. “Citizens simply lack trust in the system when the system does not appear to adequately reflect their interests.”
Wide-ranging reasons for lack of representation
Up until the 1960s, the federal bench was comprised almost exclusively of White men. In 1966, then-President Lyndon B. Johnson appointed Constance Baker Motley to the Southern District of New York, making her the first Black woman to become a federal judge. In the decade to follow, the federal bench saw a substantial increase in judges of color after former President Jimmy Carter announced a priority appointing more diverse judges.
Overall, only 137 Hispanic Americans have been federal judges in US history, 53 have been Asian American and four have been Native American.
There is a clear partisan divide in judicial appointments, with Democratic presidents nominating more Black and non-White judges to the federal bench than Republican presidents. In total, Democratic presidents have nominated 180 Black judges to the federal judiciary, while 60 were nominated by Republicans. Among Black federal judges who are still actively serving, 115 were nominated by Democrats, and 37 were nominated by Republicans.
President Joe Biden has also emphasized diversity in many of his judicial appointments. Just over a year into his term, 67% of his confirmed nominees to the federal bench have been non-White, the highest share of any president. By comparison, just 16% of former President Donald Trump’s confirmed nominees during his term were non-White.
There are several reasons for a lack of diversity on the federal bench, including systemic discrimination, bias and unequal access to opportunities in the legal profession. Other factors include underrepresentation in judicial clerkships, prestigious experiences often seen in the background of judges, and underrepresentation in law firm partnerships. Early on, US Presidents, who have the power to appoint federal judges and accept recommendations for judicial candidates from lawmakers, including senators who vote on whether to confirm those appointed, also did not prioritize appointing diverse judges.
There is also the fact that federal judges are appointed to their roles for life and not a set term.
“When you combine life tenure with increases in average life span, you have few opportunities for federal judicial vacancies. So, it takes a lot of time to shift the demographic composition of the bench through the appointments process”, adding that because vacancies are so limited, there are often far more qualified judicial candidates than there are seats to fill.
The lack of diverse representation on the bench also has a negative impact on the de facto pipeline in which aspiring judges climb the legal profession ranks.
“The lack of diversity on the bench right now also kind of contributes to the lack of diversity on that pipeline because you don’t have necessarily an expansive set of networks to help folks navigate those processes,” Alicia Bannon, director of the judiciary program at the Brennan Center for Justice.
Black lawyers are already underrepresented in the legal profession more broadly, with only 5% of all lawyers being Black, according to the American Bar Association. And while progress has been made in employment among Black law graduates, narrowing gaps in employment are still quite considerable, according to an analysis by the National Association for Law Placement released in 2021.
Law school enrollment over the past decade has declined by 25%, according to a study by the American Bar Federation looking at enrollment from 1999-2019. At that time, Black and Hispanic students made up a larger share of law school enrollment since the Great Recession, but Black and Hispanic students were disproportionately enrolled in lower-ranked schools with lower rates of bar passage and post-graduation employment, the study also found.
“The pipeline for judges runs through law schools,” said Tomiko Brown-Nagin, dean of Harvard Radcliffe Institute at Harvard University, adding that law school candidates have to be prepared by courses studied in college and in high school. “There is a need to pay attention to increasing and ensuring equal opportunity at all levels of the educational system and in the legal profession.”
‘Visible diversity breeds visible diversity’
One way to increase diversity on the federal bench is to increase the number of diverse legal professionals in the de facto pipeline to the federal bench and Black representation in law schools.
Judicial clerkships — which are coveted and competitive opportunities for lawyers and graduates to shadow a judge — allow one to gain upfront experience and insight into a judgeship itself. Law graduates of color are underrepresented in all levels of judicial clerkships, particularly at the federal level, according to an analysis by the National Association for Law Placement that was released in February 2021. Just 2.1% of Black graduates are at the federal clerkship level, the group found.
US Presidents and lawmakers should also be committed to diversity in appointments and recommendations. Role-modeling from the bench itself could also lead to a diverse pipeline and Brown-Nagin said Jackson’s appointment could inspire other Black women to pursue judgeships.
“Visible diversity breeds visible diversity. Meaning, if Black women historically have not been appointed judges, then it stands to reason that Black women don’t think that they’re likely to be appointed judges. It’s just a sort of a vicious circle,” Brown-Nagin said.
Jackson, a Harvard Law graduate who went on to serve on the federal judiciary for nearly a decade, clerked for Justice Stephen Breyer during the 1999 term; Judge Bruce M. Selya, a federal judge in Massachusetts; and US District Judge Patti Saris in Massachusetts. During her confirmation hearing, she spoke of the importance for law students of color to have access to clerkships and said her experience as a clerk “changed the trajectory of her career.”
“It has been a part of my practice to go to schools, to reach out to young people, to tell them about clerking, to try to get them to apply to me if I can and to show them that this is something that is possible,” Jackson said. “If I can do it, they can do it. And I think it is to the benefit of us all to have as many different law students seeking clerkships as possible.”