If you’re one of those folks who believe the United States should function, broadly speaking, as a representative democracy, it would stand to reason that over a long enough timeline, the demographics of the organs of government would start to resemble the breakdown of the country. That’s not even the dreaded “identity politics” at work, but simple math. At any given time some groups might be over- or underrepresented (indeed, there’s nothing wrong with Justice Ginsburg’s famous “when there are nine” hope for an all-woman Supreme Court), but generally speaking if 15 percent of the population is X, then about 15 percent of the people in a particular office should also be members of X over the long haul simply by virtue of being 15 percent of the available pool.
But since the folks responsible for staffing the federal judiciary — specifically Leonard Leo and other Federalist Society leaders — believe America’s “representative democracy” should stretch only so far as representing the second-most selective country club in Mississippi, the federal judiciary does not really resemble America. I mean, they don’t even care if their judges are qualified, so seeking diversity enhancements is a tall order for them.
This morning, the Center for American Progress released a major report on the diversity of the federal judiciary titled, “Examining the Demographic Compositions of the U.S. Circuit and District Courts” prepared by Danielle Root. It gathers the receipts for the claim we all vaguely know to be true: the courts are woefully unrepresentative of America.
White people comprise 80 percent of the circuit courts despite comprising around 62 percent of the population. While that’s already bad, because federal judicial appointments are still for life, this is a number that’s only going to get worse. As the share of white people in the country declines relatively, people like Allison Rushing — a 2007 law school grad on the Fourth Circuit on the strength of her resume formerly working for a group that defined homosexuals as a threat to society — will just be reaching middle age with no plans to go anywhere.
Only one circuit is 50 percent female. Only one openly LGBTQ jurist sits on a circuit court. Women of color make up around 20 percent of the population and only 6 percent of active circuit judges.
Around 42 percent of active district court rosters are entirely white. Only 16 percent of district courts have at least half female judges. Openly LGBTQ folks? None. But credit to the Southern District Court of Illinois and the District Court of Hawaii where women of color make up half the bench. So there’s some progress!
But the report breaks down demographics by circuit as well, recognizing that, for instance, the Second Circuit where people of color comprise approximately 42 percent of the general population will have a larger pool of prospective jurists to draw from than, say, the Eighth Circuit where people of color represent around 21 percent of the population. But even controlling for this variances, the judiciary comes up short. The Second Circuit’s active judges are 69 percent white and the Eighth Circuit’s active judges are 91 percent white, both of which are off.
But the most insane offender is the Fifth Circuit where the population is 55 percent people of color but the active judges are 81 percent white. As you might suspect, the Eleventh Circuit isn’t far behind with 45 percent of the population being people of color and 80 percent of the active judges being white. It’s almost like those courts represent parts of the country where systemic racism has been particularly aggressive in preventing upward mobility among non-white people. But that certainly can’t be the case, because Chief Justice Roberts told me racism doesn’t exist anymore in Shelby County.
There’s a lot more detail broken down in the report.
Coupled with a prior CAP report finding that judges of “different races and ethnicities; gender identities and sexual orientations; and even educational and professional backgrounds add immense value to the development of federal common law that is fairer and more humane,” this study sounds the alarm for future administrations and Senators to work overtime to right the ship when it comes to demographic representation. Because numbers like this aren’t a quirk, it’s evidence of pretty deliberate disregard for selecting jurists from the full pool of available talent.
While liberals will naturally be inclined to spit outrage over these numbers, they shouldn’t be allowed to duck scrutiny for their role in getting us here. For years, when they had a hand on the rudder, they’ve distributed federal judgeships to talented attorneys based often on long-standing personal connections or a history of generous donations. This artificially limits the pool of available nominees to high-end attorneys and in-house counsel — jobs that for a whole host of other reasons are not necessarily diverse. Going forward, take a step back, recognize that biases may be compounding, and keep aware of talented attorneys who might not have been your roommate at Duke 40 years ago. That’s what the Democrats need to take away from this.
For the Republicans… well, Leonard Leo’s really psyched about a polo and khaki-clad caddy he just met who swears he’s watched 6 full seasons of Law & Order. Hearings will be scheduled next week.
Examining the Demographic Compositions of the U.S. Circuit and District Courts [Center for American Progress]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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