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Federal judges wield immense power. Each day, they make decisions that affect people’s livelihoods, well-being, and fundamental rights. They serve as a check on the executive and legislative branches. This balanced system is designed to ensure that lawmakers and the president adhere to the United States’ constitution and established laws. Federal judges serve for life and therefore can determine the nation’s laws for generations. This is particularly true today as federal judges are serving longer terms.¹

In order to function properly, however, the federal judiciary needs the public to trust that the institution and the decisions it renders are legitimate. Otherwise, judicial rulings would be virtually impossible to enforce. Instead of being the final arbitrator of the law, the judiciary would take on a mere advisory role.

Many people—including legal scholars, judicial commentators, and legal practitioners—have raised concerns about the federal judiciary’s current legitimacy crisis. Members of the public increasingly perceive federal courts as unfair, particularly to underrepresented groups, and as entities that favor corporate interests over the public good. In particular, federal judges—especially Supreme Court justices—are increasingly viewed as political actors, while the courts are viewed as partisan institutions. This is due in part to hyperpartisanship in the judicial nomination process and recent appointments of overtly partisan judges. Of course, the process of appointing judges to serve for life on federal courts has always been political in nature and subject to heated debate between political parties. That said, the rancor and norm-breaking in the judicial nomination process has escalated in recent years.

Also contributing to the judiciary’s legitimacy crisis is the lack of federal judges representing historically underrepresented groups, such as people of color, women, individuals who self-identify as LGBTQ, people with disabilities, and people belonging to minority religions. Today, more than 73 percent of sitting federal judges are men and 80 percent are white.² Only 27 percent of sitting judges are women, while Hispanic judges comprise just 6 percent of sitting judges on the courts. Judges who self-identify as LGBTQ make up fewer than 1 percent of sitting judges.³

Diversity adds immense value to the judiciary. For parties to a case and the public at large, the court’s legitimacy is strengthened when many of the decision-makers look like or share similar characteristics to them. As aptly described by Supreme Court Justice Elena Kagan, “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”⁴ Moreover, ethnic and gender diversity on the bench has been shown to positively affect decision-making.⁵ However, while previous presidential administrations have made concerted efforts to diversify the bench, President Donald Trump has appointed the least racially and ethnically diverse group of federal judges of any president over the past three decades.⁶

For the first time in nearly 50 years, Roe v. Wade is under serious threat of being overturned or undermined by the U.S. Supreme Court.⁷ Judges have also taken aim at important protections for LGBTQ people, religious minorities, and people of color.⁸ While federal courts have at times offered underrepresented groups a tool for realizing and protecting basic and fundamental rights, this is becoming increasingly less true—particularly under President Trump.⁹ According to information compiled by the Alliance for Justice, at least 40 of Trump’s judicial appointees have poor records in one or more of the following issue areas: voting rights, reproductive justice, LGBTQ rights, and protecting the Affordable Care Act (ACA).¹⁰

Judges who self-identify as members of historically underrepresented groups draw on their divergent life experiences while hearing cases and deliberating with colleagues, which helps them to consider the interests and unique perspectives of a variety of litigants and communities. Accordingly, diversity in the judicial pool helps to ensure that rulings reflect a broader set of viewpoints, especially those that are traditionally overlooked, while acting as a check on a single dominant perspective.

In its report “Structural Reforms to the Federal Judiciary,” the Center for American Progress examined a number of potential reforms to help restore fairness to federal courts, including setting term limits, adding justices to the Supreme Court, and strengthening ethics requirements.¹¹ This follow-up report focuses specifically on addressing the federal judiciary’s lack of diversity. Part I explores this problem in terms of race and ethnicity, gender, sexual orientation, and religious affiliation, as well as how the lack of diversity has become worse under President Trump; it also examines the lack of varying professional and educational backgrounds among federal judges. Part II describes various benefits to having judges from a variety of backgrounds, such as improving judicial decision-making and the public’s perception of the judiciary as a legitimate institution. Finally, Part III offers recommendations for increasing the number of judges from historically underrepresented groups and different backgrounds on the federal courts, such as addressing judicial pipeline problems and making judicial nominations and appointments more inclusive.

The inclusion of judges from different backgrounds and walks of life results in more thoughtful and balanced decisions, thereby bolstering the legitimacy of the courts, while—at the same time—offering a wide array of benefits to litigants and the legal profession.

Since the nation’s founding, the federal judiciary has been overwhelming white and male. From the 18th century until the 1960s, white male judges comprised at least 99 percent of the federal judiciary.¹² A woman was not appointed to an Article III judgeship until 1934 under President Franklin D. Roosevelt, and it was not until 1949, under President Harry S. Truman, that an African American was appointed to a federal circuit court.¹³ On the Supreme Court, racial and gender diversity came even later: Justice Thurgood Marshall—the first African American justice—was appointed in 1967, while the first woman on the court, Justice Sandra Day O’Connor, was not appointed until 1981.¹⁴ Judge Deborah A. Batts—the first openly LGBTQ federal judge—was not appointed until 1994.¹⁵

Although judicial diversity has improved in recent years—thanks, in particular, to efforts by former Presidents Jimmy Carter, Bill Clinton, and Barack Obama—federal courts remain dominated by judges who are white and male. As of August 2019, 80 percent of all the sitting judges on the federal bench were white and 73 percent were male. Together, white males comprise nearly 60 percent of all judges currently sitting on the federal bench.¹⁷ Meanwhile, people of color—including those belonging to two or more races—and women make up only about 20 percent and 27 percent of sitting judges, respectively, while individuals self-identifying as LGBTQ comprise fewer than 1 percent of all sitting judges.¹⁸ To put this into perspective, people of color make up nearly 40 percent, women make up 51 percent, and people identifying as LGBTQ comprise approximately 4.5 percent of people living in the United States.

Of judges currently sitting on federal Article III courts, only about 10 percent are African American and 2.6 percent are Asian American. These numbers do not track with the U.S. population. For example, Blacks and African Americans comprise 12.5 percent of the U.S. population, while Asians make up 5.7 percent of the population. Hispanics are even more significantly underrepresented on the courts compared with their share of the population: Only 6.6 percent of sitting federal judges are Hispanic, despite the fact that this group comprises 18.3 percent of the U.S. population, according to the U.S. Census Bureau.¹⁹ And there are only two American Indian judges sitting on the federal bench, making up just 0.1 percent of the federal judiciary compared with 0.7 percent of the U.S. population.²⁰

If one narrows the pool to just active federal judges, which does not include judges in senior status, the numbers improve—but only marginally. Among active judges, nearly 73 percent are white and 67 percent are male. White males comprise 50 percent of all active federal judges. On the other hand, people of color comprise 27 percent and women represent 33 percent of active federal judges. Approximately 13 percent of active federal judges are African American, while 4 percent are Asian American and 9 percent are Hispanic.²¹ Among judges actively serving on the federal courts, only one is American Indian. In all, people of color comprise just 27 percent of actively serving judges. Meanwhile, LGBTQ people make up approximately 1.4 percent of active judges.²²

It can be difficult to acquire up-to-date information on the religious affiliations of federal judges, as they may not openly disclose which faith—if any—they adhere to. However, a 2017 study by scholars Sepehr Shahshahani and Lawrence J. Liu found that among federal appellate judges, 45.1 percent were Protestant, 28.2 percent were Catholic, 19 percent were Jewish, and 5.1 percent were Mormon.²³ Strikingly, Hindu judges comprised just 0.5 percent of federal appellate judges, and the study’s authors were unable to identify any Buddhist, Muslim, or atheist federal appellate judges. In 2016, then-President Obama nominated Abid Riaz Qureshi to the U.S. District Court for the District of Columbia. Quareshi would have been the first Muslim American federal judge, but the Senate failed to confirm his appointment.²⁴

Regrettably, the authors were unable to locate any publicly available data on the number of sitting federal judges with disabilities. The virtual absence of information on disabled federal judges is problematic and deserves more attention.

The federal judiciary also lacks diversity in terms of educational background. A 2016 study found that approximately 48 percent of all former and current federal judges graduated from one of 20 top law schools. Of those, nearly a quarter attended law school at Harvard University, Yale University, University of Michigan, University of Texas, or Columbia University.²⁵ When factoring in judges who attended University of Virginia, Georgetown University, University of Pennsylvania, George Washington University, and Stanford University, this number jumps to 35 percent of all federal judges, past and present. Among Supreme Court justices, in particular, more than 30 percent of those who have served on the court graduated from just one law school: Harvard. In fact, as noted by the study’s authors, “Harvard has had more representation on the Supreme Court than the bottom ninety-five percent of law schools combined.” Just three elite law schools—Harvard, Yale, and Columbia—have been responsible for more than half of all Supreme Court justices who have served on the bench since the nation’s founding.²⁶

Professional diversity is also lacking. A 2017 Congressional Research Service report found that more than 46 percent of active federal circuit court judges were either serving in private practice or as a state or local judge when they were appointed to the federal bench. In comparison, 7.5 percent were working as law professors, 3.7 percent were working for state and local government, and fewer than 1 percent were serving as a public defender.²⁷ Among active district court judges, nearly 66 percent were either working in private practice or serving as a state or local judge. At the same time, only 3 percent were working for state or local government, 1.4 percent were serving as a public defender, and just 0.5 percent were working as a law professor when they were appointed. Having judges with different professional experiences overseeing cases is important because these experiences can shape how judges view the application of the law and individual parties.²⁸ Moreover, a 2016 study by the Alliance for Justice found that roughly 86 percent of judicial nominees under the Obama administration had either worked as corporate attorneys, prosecutors, or both.²⁹ At the same time, fewer than 4 percent had worked as lawyers at public interest organizations.³⁰

Efforts to diversify the federal judiciary have regressed under Trump

Although other presidents who served during the early to mid-20th century made some efforts to appoint federal judges belonging to historically underrepresented groups, President Jimmy Carter was the first to make diversifying the federal courts a priority. Until Carter entered office, white judges made up at least 90 percent of all judicial appointees in every preceding administration since the nation’s founding. Under Carter, however, judges from racially and ethnically diverse backgrounds comprised more than 21 percent of appointees.³¹ Of Carter’s judicial appointees, 37 were African American, which amounted to more than three times the number of African American judges appointed by any previous administration.³² Moreover, whereas female judges comprised less than 2 percent of judicial appointees in past administrations, they made up nearly 16 percent of Carter’s judicial appointees.³³

In the 1990s, President Bill Clinton took up the mantle left by Carter: Almost half of all of Clinton’s federal judicial appointees were from historically underrepresented groups. Yet no president aimed to diversify the bench more than President Barack Obama. Obama nominated and confirmed more women than any other president in history, although there is still significant room for improvement; by the time he left office in January 2017, nearly 42 percent of his judicial appointees had been women.³⁴ Moreover, people of color comprised nearly 36 percent of Obama’s 324 judicial appointees. In all, more than 60 percent of Obama’s judicial nominees were people of color, women, and sexual or gender minorities.

Unfortunately, any gains in diversity made by previous administrations came to a halt once Trump took office. President Trump is appointing federal judges at a rapid pace, yet his judicial picks are the least racially and ethnically diverse of any presidential administration over the past 30 years. As of August, Trump lagged behind the Obama administration in appointing women by 20 percentage points.³⁵ The current administration’s stunning reshaping of the federal courts undercuts decades-worth of efforts by previous administrations—both Democrat and Republican—to diversify the judiciary.

Since President Ronald Reagan, every president except Trump has made the judiciary more racially and ethnically diverse than the proceeding president of the same party.³⁶ In other words, each Republican president elected after Ronald Reagan appointed judges who were at least equally, if not more, racially and ethnically diverse than those appointed by his Republican predecessor—and the same holds true for Democrats. For example, although President George H.W. Bush did not appoint as many judges of color as Jimmy Carter, he did appoint more than Ronald Reagan. Trump broke this trend, as his appointees are 4 percentage points less racially and ethnically diverse than judges appointed by President George W. Bush.³⁷

As of August 20, 2019, of Trump’s judicial appointees, 78 percent were male and 86 percent were white, with white men comprising 67 percent of Trump appointees.³⁸ Only 21.5 percent of Trump’s appointees were women, while people of color made up fewer than 14 percent of Trump’s federal appointees. Only one of Trump’s appointees openly identifies as LGBTQ.³⁹ Moreover, as of August, Trump had only appointed five African American judges and five Hispanic judges. And although 10 of Trump’s appointees were Asian Americans, he has failed to appoint a single American Indian judge.⁴⁰

Examining Trump’s judicial nominees is an even better indicator of the lack of priority that the administration has assigned to broadening representation on the bench. Although Trump cannot directly control which of his nominees the Senate ultimately confirms, he has autonomy over whom he nominates. As of July 31, 2019, Trump had nominated 183 judges to the federal bench. Of those, more than 78 percent were men and 84 percent were white. Together, white men made up 67 percent of all Trump judicial nominees at that time. Only seven—3.83 percent—were African American, while just 40—21.86 percent—were women.⁴¹ Hispanic and Asian American judges accounted for only five and twelve—2.73 percent and 6.56 percent—of Trump’s nominees, respectively. Not a single American Indian judge has been nominated by Trump, and only two judges—1.09 percent—have been nominated who openly identify as LGBTQ.⁴²

Moreover, when Obama left office in January 2017, more than 50 of his judicial nominees were still pending, many whom were women and/or people of color.⁴³ But instead of renominating Obama’s nominees, once he became president, Trump replaced several of them with nominees who were either white, male, or both.⁴⁴

Although Trump did end up renominating 13 of Obama’s holdover nominees as of August 2019, seven of them were white males, four were white females, and two were Asian American women.⁴⁵ There were only a few instances where Trump nominated someone who was more representative in terms of race and ethnicity or gender. For instance, Trump replaced one of Obama’s white male nominees with a white female and replaced one of Obama’s white female nominees with a woman of color. In addition, two white women nominated by Obama were replaced by men of color under Trump.⁴⁶

Still, Trump’s insistence on nominating and appointing primarily white male judicial candidates, and the Senate’s rush to confirm them, will have profound effects on the country’s legal trajectory and people’s lives.

In considering the courts’ demographic makeup, it is obvious that the federal judiciary is not an equal opportunity employer and instead favors white male elites. This has real consequences for historically underrepresented litigants and parties who may not receive fair or even-handed rulings due to inherent biases among judges. Indeed, a consequence of having such a judiciary is that the public may begin to view the courts as another cog in an already oppressive legal system, rather than as a trustworthy and independent institution.

Also contributing to the public’s distrust of the judiciary is a growing body of evidence showing that certain litigants—mainly people of color—receive disparate treatment when they come before white judges. This treatment has not gone unnoticed.^{https://www.americanprogress.org/issues/courts/reports/2019/10/03/475359/building-inclusive-federal-judiciary/}