In his first 18 months in office, President Joe Biden has appointed the most diverse group of federal judges in history, although confirmations could slow in the coming months.
That was the conclusion of four experts who spoke at a July 28 American Bar Association panel on “The Changing Face of the Federal Judiciary: Is it Permanent or Temporary?”
As of July 1, the Senate had confirmed 68 Biden nominees to federal courts. Three-quarters (77%) were women and two-thirds (65%) were lawyers of color. Only three were white men.
In his first year as president, Biden appointed more judges than any president since John Kennedy, said Russell Wheeler, a visiting fellow at the Brookings Institution. But that pace could soon slow down. President Bill Clinton appointed 126 judges by the end of his second year, but it’s “quite doubtful” that Biden will match that, Wheeler said.
Biden’s effect on the judiciary in his first two years will depend on how many of his pending nominations are confirmed in the last half of 2022, Wheeler said. “I can assure you, not all of them will be confirmed.” If Republicans take over the Senate next year, “we can be sure the pace of nominations will slow considerably by his third and fourth years.”
Tomiko Brown-Nagin, dean of the Harvard Radcliffe Institute, said this political reality underscores the need to rapidly diversify the judiciary. “If one is committed to diverse judges … then it is vitally important to get with it, as soon as possible, and to ensure that a diverse complement of judges is in the pipeline,” she said.
Politics has been part of the appointment process for years, said Robert Saunooke, a North Carolina lawyer and former president of the National Native American Bar Association. But now, he said, judicial nominees “almost have to have a history from the bench or opinions or articles that support the ideology of the party that’s in control. That’s more of a concern to me now than I think we have had in the past.”
The panelists also debated why so many federal judges come from Harvard and Yale law schools. Eight of the nine U.S. Supreme Court justices are graduates of Harvard or Yale, as are 183 federal judges across the country.
That’s not surprising, Brown-Nagin said, because Harvard and Yale graduates “tend to be well networked, and networks matter for all manner of jobs, and the judiciary is no different.” Harvard and Yale law professors know judges, they send their students and graduates to judges to become clerks, and then those clerks tend to become judges themselves, she said. “So there’s just this circle that reinforces the domination of these schools for federal appointments.”
But Benes Aldana, president of the National Judicial College, countered that “that cycle needs to break if we’re talking about diversity.” He asked: What does that dominance by Harvard and Yale say to graduates of other law schools? “That they’re not excellent? That they’re not well-trained?”
Brown-Nagin replied, “I’m describing the world as it is, I’m not advocating.”
The program was moderated by Boston Globe columnist Kimberly Atkins Stohr and sponsored by the ABA Media Relations & Strategic Communications Division.
