Diversity on the Bench

Judicature, May/June 2011 | Go to article overview

Diversity on the Bench


Examining the first two years of Obama's presidency reveals that, in terms of judicial nominees, ethnic and gender diversity is the "change we can believe in.*1 Justice Sonia Sotomayor's confirmation as the first Latina to serve on the United States Supreme Court was one of many historic "firsts" during the 111th Congress. In the courts of appeals, O. Rogeriee Thompson is the first African American to serve on the First Circuit, Albert Diaz the first Hispanic American to serve on the Fourth Circuit, and Denny Chin the first Asian American to serve on the Second Circuit The results are similar for the district courts: women were confirmed to district courts in two of the nine states where no woman previously had served (Vermont and Wyoming) ; African Americans were confirmed to district courts in two states (West Virginia and Indiana) where none previously had served and the first Asian American was confirmed to a district court in Illinois.

These historic firsts are not surprising given die high proportion of non traditional appointees during Obama's first term. Out of 61 appointments to lifetime judgeships on courts of general jurisdiction, 43 were nontraditional, that is, not white males, and total a remarkable 70.5 percent. As Table 6 in the main text notes, 31 women were confirmed during the llldi Congress, accounting for more than half of Obama's appointees. The proportion of women confirmed far exceeds diat of any previous administration (including Clinton, who made the largest impact on diversifying the federal bench prior to Obama). African-American appointees also enjoyed great success as they comprised 26.2 percent of those confirmed, again a vast increase over any previous administration. Five Hispanic Americans were appointed by Obama, but the proportion of total nominees (8.2 percent) - while higher than Clinton's 6.8 percent - was slightly lower than during the administration of W. Bush.

However, tfie starkest comparison across presidential administrations is for Asian Americans. In his first two years in office, Obama appointed six Asian Americans to the federal bench, which totals in absolute numbers more than any other president during an entire presidency. These appointees accounted for nearly 10 percent of those confirmed during the 111th Congress, which when compared over time, is truly remarkable.

Despite Obama's attention to appointing diverse judges, the relative impact of the new set of appointees on the overall diversity of the federal bench is fairly small. The percentage of nontraditional judges in active service (when not double counting women who also belong to a racial minority group) was 38.8 percent when Obama took office and totaled 39.5 percent at the end of die 11 Idi Congress. This represents an increase of only 1.8 percent during Obama's first two years in office. (See Table 1) This slight increase is even more puzzling when compared to the 36.2 percent increase after Clinton's first two years or the 6.7 percent increase at W. Bush's first midterm. Three factors help explain why the overall impact of Obama's confirmed judges was so small, despite die large proportion of nontraditional nominees: 1) in absolute numbers, Obama made fewer appointments; 2) die large number of vacancies created by nontraditional judges leaving active service or being elevated; and 3) the high proportion of "double diverse" nominees.

First, Obama simply made fewer appointments during his first two years than past presidents. Having benefited from the extraordinary number of vacancies he inherited, W. Bush successfully added 99 judges to the federal bench during his first two years, 32 of whom were nontraditional. Clinton's imprint was even larger - he made 127 appointments (including 2 to the Supreme Court) during his first two years, 75 of whom were nontraditional. Comparing these numbers to Obama's 61 appointments, it becomes clear that although a greater proportion of Obama's appointments were diverse, the lower number of appointments resulted in less progress overall in terms of diversifying die federal courts. …

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