Biden’s Supreme Court Promise Underscores A Reality: Black Women Rarely Get to The Federal Judiciary

Biden pledged to nominate the first Black woman for the US Supreme Court. The rest of the judiciary hasn’t fared much better in representing them or other women of color.

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Judge Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing.

WASHINGTON — President Joe Biden on Thursday repeated his pledge to nominate the first Black woman for the US Supreme Court now that Justice Stephen Breyer plans to step down. It’s a move that underscores not only the historic lack of diversity on the high court, but also just how much women and people of color, and especially women of color, have been dramatically underrepresented in the federal judiciary’s 232-year history.

The lack of racial and gender diversity on the bench is often most noticeable when it comes to the Supreme Court, given the relatively small number of justices who have served compared to the rest of the court system and their much higher public profile. Just three of the 115 justices have been Black or Latinx: the late justice and pioneering civil rights attorney Thurgood Marshall, and sitting Justices Clarence Thomas and Sonia Sotomayor.

But the numbers aren’t much better in the lower courts, where 1.8% of federal judges to have ever served have been Black women — 70 out of 3,840 — and 3.4% have been women of color, according to the judiciary’s public database.

Representation has improved in the past few decades but continues to lag. Black women make up approximately 7.4% of the US population, according to BuzzFeed News’ analysis of census data. There are 1,395 sitting federal judges, a number that includes judges who are fully active as well as judges in a type of quasi-retirement known as senior status who have the option of smaller caseloads. Of the current cohort, 56 judges are Black women — making up 4% of the group, including judges who also identified as being multiracial — and a total of 114 are women of color, making up just over 8%. Judges who identify solely as white make up 78.5% of the federal bench, compared to 61.6% of the total US population, according to the 2020 Census.

On the federal appeals courts, representation of women of color has gone up by just a few percentage points as well. Of the 809 appellate judges to have ever served, 13 have been Black women — making up 1.6% — and a total of 24 have been women of color, making up 2.9%. Out of 293 federal appeals court judges serving today, 10 are Black women, making up 3.4%, out of 20 women of color, coming to 6.8%.

“You have a situation where our highest courts do not at all reflect our communities, the diversity of our communities, and particularly so when it comes to Black women,” said Juvaria Khan, the founder of the Appellate Project, an initiative launched in 2019 to help students of color land jobs practicing in the appeals courts with an eye to creating more pipelines to judgeships.

Judges of color have long talked about how having courts reflect the communities they serve builds public trust and deepens the wealth of expertise they can draw on in making decisions. At a panel discussion last year, 6th Circuit Judge Bernice Donald, one of the few Black women on the federal appellate bench, explained: “We as judges will always follow the law but ... justice is informed by our perspectives. And diversity does not mean that individual decisions are driven by our life experiences; rather, they add different angles from which to look at an issue or question." US District Judge Carlton Reeves, who sits in Jackson, Mississippi, said at the same event that the judiciary faced a “crisis of legitimacy” if it failed to catch up to the demographics of the country.

There are three judges widely considered to be frontrunners for Justice Stephen Breyer’s seat; he’s disclosed that he intends to step down at the end of the court’s term this summer, assuming a successor is confirmed. Two of those judges are on the federal bench: Judge Ketanji Brown Jackson of the US Court of Appeals for the DC Circuit and US District Judge J. Michelle Childs of South Carolina; the third is a member of California’s state supreme court, Judge Leondra Kruger.

The lower federal courts and state courts aren’t the only places where presidents can pull Supreme Court nominees from — Justice Elena Kagan, a former US solicitor general, had never served as a judge, and technically by law justices don’t even have to be lawyers — but it’s by far the most common path to the highest court in the modern era.

Khan said that although many more BIPOC students are entering law school than in the past, that hasn’t automatically increased their representation among federal court nominees, especially at the appellate level. She identified a few reasons for that, including that the path to the bench — which often involves prestigious clerkships, key mentorships and connections, and jobs that involve appeals court practice — isn’t always clear, particularly for students who may be the first in their families to reach that level of education.

“What you get is a lot of very highly qualified law students, especially students of color, who are outside of that network,” Khan said.

The first Black woman was confirmed to a federal judgeship in 1966: Judge Constance Baker Motley. After earning her law degree from Columbia Law School in 1946, Motley spent the next 20 years as an attorney with the NAACP Legal Defense and Educational Fund; she was hired by Marshall. Her work featured a string of landmark desegregation cases, including Brown v. Board of Education. The year before her nomination to the federal district court in Manhattan by former president Lyndon Johnson, she became the first Black woman elected to serve in the New York state senate.

Under former president Donald Trump, the majority of federal court nominees were white men. The Biden administration has prioritized not only gender and racial diversity but also professional diversity, making a point of highlighting nominees who worked as public defenders and in other areas of law, including civil rights. In his first year in office, he tapped a series of nominees who represented more historic firsts in terms of diversity across the federal judiciary. More than half of the 42 judges confirmed since Biden took office have been women of color.

Some of those barrier-breaking nominees have already been confirmed, including US District Judge Zahid Qureshi of New Jersey, the first Muslim American to serve as a presidentially appointed federal judge; 2nd Circuit Judge Beth Robinson, the first openly lesbian woman to serve on any federal appeals court; and Federal Circuit Judge Tiffany Cunningham, the first Black judge on that court.