by Carl P. Leubsdorf
If Ketanji Brown Jackson is confirmed as a Supreme Court justice, as seems likely, the high court will come closer to reflecting the country’s racial and gender balance than at any time in the nation’s history.
Restoring its political balance may take more time.
In a sense, Biden’s choice of Jackson exemplifies the effort he has made since taking office to change the makeup of the entire federal judiciary. Though he has made substantial progress in appointments to the district and appellate courts, he has a long way to go before he can transform the overall federal judiciary. It’s something that will be at stake in November’s midterm elections.
The demographic change at the Supreme Court over the last generation has been dramatic. It’s been 41 years since President Ronald Reagan selected Sandra Day O’Connor as the first female justice on a court that then had seven white men and one Black man. If Jackson is confirmed, the nine justices will include four women, two African Americans and one Hispanic.
In other ways, it is less reflective of the country. Six of the nine justices are Roman Catholic while a seventh, Neil Gorsuch, was raised Catholic but now attends an Episcopal church. Elena Kagan is Jewish. Jackson has been identified as protestant, without specifics.
And the openings that enabled President Donald Trump to name three justices in one term created a court that, on numerous issues, seems ideologically to the right of the country. Though each party had held the White House for half of the past 64 years, six of the nine justices were Republican nominees.
Jackson is the third consecutive woman, and the second minority, to be nominated by the last two Democratic presidents. President Barack Obama named Sonia Sotomayor, the court’s first Hispanic, and Kagan. By contrast, the last two Republicans have chosen four white men and one white woman, Amy Coney Barrett.
A similar difference marks the nominees to lower federal benches.
According to the nonpartisan Congressional Research Service, only 20% of the 40 federal district and appeals judges that Biden nominated and the Senate confirmed in his first year in office were men. By contrast, 77% of those nominated and confirmed in the same period by Trump were male.
A similar disparity existed in terms of their racial characteristics. Of the 40 Biden nominees confirmed in his first year, 13 were white, reflecting 33% of the total. Of Trump’s 18 judicial choices confirmed, 16 were white, or 89% of the total.
Even more dramatically, of the 45 Biden judicial nominees who have been confirmed as of early last month, according to the nonpartisan American Constitution Society, just two were white men. Thirteen were white women, eight were minority men and 22 were minority women. Of the 30 members of minority groups, 11 were Black, seven Latinos and seven Asian Americans.
Still, unlike with the Supreme Court, Biden will need much more time to truly transform the federal judiciary.
According to the CRS statistics, 71% of the nearly 611 federal district judges sitting as of Jan. 1 were white and 65% were male. Similarly, of 176 current federal appeals judges, 74% were white and 63% male.
These statistics don’t illustrate the ideological balance in the federal court system. In some cases, judges have displayed a somewhat different judicial philosophy on the bench than their prior political activities indicated.
That often happened with the Supreme Court before nominations and confirmation hearings became so political. For example, Justices William Brennan and David Souter, nominated by Republican Presidents Dwight D. Eisenhower and George H. W. Bush, proved moderate to liberal on the bench. Earl Warren, named chief justice by Dwight Eisenhower, was so liberal that Eisenhower later said he regretted the appointment. But Justice Byron R. White, named by President John F. Kennedy, turned out to be relatively conservative. Greater scrutiny of a nominee’s past writings and decisions makes this less likely nowadays.
The philosophies of lower court nominees are often less known than those of Supreme Court nominees, since many are lawyers who have not been active politically. However, most tend to reflect the philosophies of the presidents who appointed them.
For example, Republican appointees on the district, appellate and Supreme Court levels allowed the controversial new Texas law banning most abortions to continue in effect pending the outcome of a judicial challenge.
Ultimately, Biden’s lasting influence will depend on how long Democrats maintain their tenuous majority in the Senate. With most Republican senators opposing most of the president’s judicial choices, Senate Democrats need to maintain their Senate solidarity to confirm them with their 50 senators and the tie-breaking vote of Vice President Kamala Harris.
If the GOP regains Senate control in November, Biden’s effort to transform the federal judiciary will likely end abruptly.
