The following is presented as part of The Columbian’s Opinion content, which offers a point of view in order to provoke thought and debate of civic issues. Opinions represent the viewpoint of the author. Unsigned editorials represent the consensus opinion of The Columbian’s editorial board, which operates independently of the news department.
Leubsdorf: Biden eyes federal court makeups
By Carl P. Leubsdorf
Published: March 13, 2022, 6:01am
Share:
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. 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.
Jackson is the third consecutive woman, and the second minority, to be nominated by the last two Democratic presidents. By contrast, the last two Republicans have chosen four white men and one white woman. A similar difference marks the nominees to lower federal benches.
According to the nonpartisan Congressional Research Service, 20 percent 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 percent of those nominated and confirmed in the same period by Trump were male. A similar disparity existed in terms of their racial characteristics.
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, two were white men.
Still, unlike with the Supreme Court, Biden will need much more time to truly transform the federal judiciary. According to the CRS statistics, 71 percent of the nearly 611 federal district judges sitting as of Jan. 1 were white and 65 percent were male. Of 176 federal appeals judges, 74 percent were white and 63 percent 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.
Greater scrutiny of a nominee’s past writings and decisions makes this less likely nowadays. In most instances, the six current Supreme Court justices named by GOP presidents have tended to oppose the three Democratic appointees. Though it won’t be surprising if Judge Jackson is cautious in expressing her views during confirmation hearings, it would be a surprise if she didn’t join Democratic appointees Sotomayor and Kagan on many or most issues.
Ultimately, Biden’s lasting influence will depend on how long Democrats maintain their tenuous majority in the Senate. If the GOP regains Senate control in November, Biden’s effort to transform the federal judiciary will likely end abruptly.
Morning Briefing Newsletter
Get a rundown of the latest local and regional news every Mon-Fri morning.
