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Diversity in Federal Judicial Selection During the Biden Administration

An assessment of likely future vacancies and their impact on diversity on the bench.

April 5, 2022

Introduction

Pres­id­ent Biden entered office prom­ising to diver­sify the federal judi­ciary. He vowed to nomin­ate larger percent­ages of federal judges whose personal and profes­sional back­grounds differ from judi­cial nomin­ees histor­ic­ally appoin­ted to the federal bench: by and large, white men from private corpor­ate prac­tice and state and federal prosec­utors’ offices. 

To date, Pres­id­ent Biden has nomin­ated the most demo­graph­ic­ally diverse set of judi­cial candid­ates in history, includ­ing the first LGBTQ woman to serve on a court of appeals, the first Muslim Amer­ican to serve as a federal judge, and the first Black woman to ever serve on the Supreme Court. Twenty-six percent of all Black women currently serving as active judges were nomin­ated by Pres­id­ent Biden. Nearly 30 percent of Biden’s nomin­ees have served as public defend­ers.

Using data from the Federal Judi­cial Center, this article analyzes how much Pres­id­ent Biden can alter the aggreg­ate demo­graph­ics of the federal bench during his current term. For context, we exam­ine pertin­ent demo­graphic char­ac­ter­ist­ics of all 782 active federal district and circuit judges. The article then focuses on 277 active federal District and Circuit Court judges who repres­ent likely poten­tial federal judi­cial vacan­cies because they are or will be eligible to retire or take senior status during the remain­ing three years of this admin­is­tra­tion (the “Cohort”). How many vacan­cies result, coupled with the results of the 2022 congres­sional elec­tions, will likely determ­ine the pres­id­ent’s success towards this goal.

Judges become eligible to retire or take senior status at 65, after 15 years of service as an Article III judge — the term for Supreme Court justices, as well as federal circuit and district judges, named after the Article of the Consti­tu­tion that governs them. Senior status allows judges to keep their posi­tions while open­ing up a vacancy on the court; they may also choose to take on a reduced case­load. This formula is called the “Rule of 80.” Service may be continu­ous or from multiple inter­rup­ted terms on the bench; there’s also an age-based slid­ing scale for eligib­il­ity: 14 years of service at 66; 13 years at 67; 12 years at 68; 11 years at 69; or 10 years of service at 70 or older.

Look­ing at the federal judi­ciary in the aggreg­ate, historic trends in turnover and the Senate’s confirm­a­tion customs suggest that  Pres­id­ent Biden will have an appre­ciable but modest impact on over­all racial, ethnic, and gender diversity in the federal courts. This impact would be more substan­tial if the Senate altered its blue slip processes or if the number of total federal judge­ships were increased. Pres­id­ent Biden has an oppor­tun­ity to have a more substan­tial impact in bring­ing greater profes­sional diversity to the bench.

Diversity as a Goal of Judicial Selection

Diversity in judi­cial selec­tion has a norm­at­ive dimen­sion: in a demo­cracy, the bench should reflect the public it serves. However, chan­ging the demo­graphic compos­i­tion of the courts is not only an effort to make the judi­ciary look more like Amer­ica. Social science research and manage­ment stud­ies also suggest that diversity can improve organ­iz­a­tional decision-making and perform­ance. 

In the courts, diversity has an addi­tional beha­vi­oral dimen­sion, because judges’ assess­ment of the law and facts in any given case is influ­enced by personal and profes­sional exper­i­ences. Demo­graphic diversity has a meas­ur­able impact on case outcomes in key areas of the law and on percep­tions of fair­ness in the court system, as shown in multiple stud­ies. Accord­ing to polit­ical science professor Christina Boyd, trial judges’ race or gender has “very large effects” in cases that involve issues of sex, gender, or race.

For example, plaintiffs alleging sex discrim­in­a­tion are 15 percent more likely to win a posit­ive ruling from the judge if that judge is a woman. The same study shows that Black judges, male or female, are also more inclined to rule favor­ably on sex discrim­in­a­tion claims, and that Black judges are 39 percent more likely to look favor­ably on claims of race discrim­in­a­tion. In voting rights cases, Black judges rule in favor of plaintiffs twice as often as their white coun­ter­parts.

Having diverse judges also affects how the judges around them rule. Research on federal circuit courts shows that when one woman or one African Amer­ican judge sits on a three-judge panel, decisional outcomes reflect their influ­ence.

These differ­ences may reflect a changed under­stand­ing of the “reas­on­able person” stand­ard that used to equate to the “white male cis perspect­ive.” Ques­tions of what is “reas­on­able” or not in regard to restric­tions on abor­tion or access to the polling booth may get very differ­ent answers depend­ing on one’s lived exper­i­ence.

Record to Date of the Biden Administration on Judicial Diversity

The demo­graph­ics of Biden’s judi­cial nomin­a­tions to date reflect his prom­ise to diver­sify the federal judi­ciary. The Brook­ings Insti­tu­tion recently repor­ted that Biden has “nomin­ated by any meas­ure the most demo­graph­ic­ally diverse set of judi­cial candid­ates in history and by doing so has, in just one year, reduced slightly but notice­ably the percent­age of white males among active-status judges; appoin­ted an unpre­ced­en­ted number of former public defend­ers, and filled propor­tion­ately more stat­utory judge­ships than most prede­cessors.” 

The change to date in federal judi­cial demo­graph­ics is small as a propor­tion of total judges — but, as noted by Brook­ings, it’s real change. However, it seems likely that only relat­ively small changes in the over­all demo­graphy of the bench will ensue from new appoint­ments alone over the next three years of the Biden admin­is­tra­tion.

First, some simple arith­metic: there were 782 active federal judges as of late 2021, so each judge accoun­ted for approx­im­ately .13 percent of those occu­pied posi­tions. So, for example, each white male (WM) judge who takes senior status and is succeeded by a white non-male or person of color, changes the demo­graphic make-up of the bench by approx­im­ately .13 percent, assum­ing no non-WMs are succeeded by WMs.

Also, while it is true that the federal bench is more than 70 percent white and more than 60 percent male, those “more thans” mask a more mean­ing­ful demo­graphic attrib­ute of the bench. Of the 782 occu­pied seats that could become new vacan­cies, 382 judges identify as white and male. WMs thus account for approx­im­ately 48.89 percent of these seats. As shown below, however, a far smal­ler number of the 382 WMs are or will become eligible for retire­ment or senior status over the next three years.

Demographic Composition of the Cohort

As noted above, 277 district and circuit judges are already eligible, or will become eligible, to retire or take senior status by the end of the current pres­id­en­tial term. The Federal Judi­cial Center’s data show the gender and racial/ethnic char­ac­ter­ist­ics of the 277 judges who currently satisfy the Rule of 80, or who will by the end of 2024:

White males are the largest single demo­graphic subgroup. If all of them took senior status before the end of the current pres­id­en­tial term and all are succeeded by non-WMs, the demo­graphic compos­i­tion of the federal bench would shift by approx­im­ately 18 percent­age points. However, this is only true if no WMs succeed non-WMs who concur­rently vacate one of the occu­pied seats.

That would signi­fic­antly alter the compos­i­tion of the District and Circuit Court benches. However, in light of trends in judi­cial turnover and current Senat­orial customs controlling confirm­a­tion of District judges, that 18 percent poten­tial change is likely unat­tain­able. It seems more likely that any demo­graphic shift in the current 782 comple­ment of district and circuit judges will be smal­ler.

Upper and Lower Bounds on Judicial Selection During President Biden’s Current Term

Two notable factors limit Biden’s judi­cial appoint­ments: the number of judge­ships that might become vacant over the remainder of this pres­id­en­tial term, and the Senate’s “blue slip” custom, under which senat­ors can delay or block District Court nomin­ees in their states.

Trends in Turnover on the Federal Bench for 1981–2020

For 1981 to 2000, data from the Federal Judi­cial Center show that, on aver­age and per year, approx­im­ately 40 judges resigned, retired, or took on senior status. From 2001 through 2020, approx­im­ately 44 judges resigned, retired, or elec­ted senior status each year on aver­age. 

Research published in 2012 surveyed federal judges who could take senior status but chose not to. That study iden­ti­fied a number of personal, profes­sional, polit­ical, and finan­cial reas­ons that cause judges to remain active after they become eligible to retire or take senior status. Given that study’s find­ings, it is unsur­pris­ing that, as of the end of 2021, 50 active judges had Rule of 80 scores of 100 or higher — mean­ing they had accu­mu­lated 20 more years of age and/or service beyond the minimum needed to elect retire­ment or senior status — but did not retire or take senior status. 

Consequently it appears reas­on­able to predict 40–50 new vacan­cies per year over the remain­ing three years of the current pres­id­en­tial term (not includ­ing vacan­cies from other causes). If only white males retire or take senior status over the next three years, then it’s possible that all or most of them could be succeeded by non-WMs.

There’s no defin­it­ive way to predict who will leave, but it seems reas­on­able to expect new vacan­cies and confirm­a­tions to comprise a mix of demo­graphic categor­ies, thus redu­cing Pres­id­ent Biden’s oppor­tun­ity to trans­form the compos­i­tion of the judi­ciary. This rough predic­tion is suppor­ted by noting, for example, that 12 of the 40 district and circuit judges with the highest current Rule of 80 scores are non-WMs.

The Current Role of the Senate in Judi­cial Nomin­a­tions

It is also ques­tion­able whether Pres­id­ent Biden will increase or even main­tain his admin­is­tra­tion’s initially high rate of appoint­ments, even if higher-than-usual numbers of judges choose to retire or take senior status during his current term. Under the Senate’s current “blue slip” policy, Repub­lican senat­ors can delay or block District Court nomin­ees in their states. 

Since the rule does not affect Circuit Court nomin­a­tions, it seems prob­able that any such nomin­a­tions between now and the end of the 117th Congress, in Decem­ber 2022, will be confirmed. Like­wise, judi­cial nomin­a­tions to the District Courts in states with one or two Demo­cratic senat­ors (or an Inde­pend­ent senator who caucuses with the Demo­crats) likely will be confirmed by the end of the 117th Congress. In contrast, that is not likely true for Biden’s District Court nomin­a­tions in states with two Repub­lican senat­ors, absent changes to the blue slip policy. 

Thirty-two of the WMs who are or will be eligible to retire or take senior status sit on Circuit Courts. Nomin­a­tions for their successors will not be subject to the blue slip through the end of the current Congress. However, not all of them might retire. None of them might retire. 

Any successors to the 112 WM district judges who are or will be eligible to retire or take senior status are subject to blue slips from their state’s senat­ors. Of the 112 seats held by WMs who are or will be eligible for retire­ment or senior status by the end of 2024, 56 are in states with two Demo­cratic senat­ors, one Demo­crat and one inde­pend­ent senator, one Demo­crat and one Repub­lican, or one Repub­lican and one inde­pend­ent senator. The other 56 are in states with two Repub­lican senat­ors. Again, some or none might retire.

In early 2023, moreover, control of the Senate might change parties — and federal judi­cial selec­tion might grind to a halt until a new pres­id­ent is inaug­ur­ated in 2025. Judi­cial appoint­ments might remain frozen even beyond that date if voters elect a pres­id­ent from one party and a Senate controlled by the other.

How the Federal Bench Can Be Diversified

While the Cohort’s elec­tion of senior status or retire­ment (and any other depar­tures from the federal bench) alone might not provide enough slots to make our judi­ciary much more demo­graph­ic­ally repres­ent­at­ive, another diver­si­fic­a­tion tool can also improve the health of our court system: increas­ing the number of judge­ships. Through­out our history, the courts have been expan­ded as neces­sary to reflect popu­la­tion growth and increas­ing case­loads. Indeed, that has happened 30 times since the creation of the modern circuit court system by Congress. 

Despite demon­strable need and substan­tial popu­la­tion growth since 2000, Congress has not added new judge­ships for more than 20 years; the last large increase occurred in 1990. If Congress respon­ded today as it did under Pres­id­ent Carter, it would expand the number by approx­im­ately 17 percent, reflect­ing popu­la­tion growth since 2000. Even if Congress expan­ded the courts by a smal­ler number, it would still allow for the appoint­ment of more judges who would reflect our demo­graphic and exper­i­en­tial diversity. In 2021, the Judi­cial Confer­ence of the United States reques­ted the addi­tion of 79 new judge­ships.

Conclusion

It seems clear that when consid­er­ing the judi­ciary in the aggreg­ate, Pres­id­ent Biden will have only a modest abil­ity to alter federal judi­cial race and gender demo­graph­ics without an increase in the number of judge­ships and/or a change in the blue-slip rule.

Another element of diversity on the bench is diversity of profes­sional back­grounds (e.g., prac­tice or academic special­iz­a­tion in indi­gent civil and crim­inal repres­ent­a­tion, civil rights, or civil liber­ties). Judges with these kinds of exper­i­ence are also under­rep­res­en­ted on the bench in compar­ison to judges from private corpor­ate prac­tice and prosec­utorial careers. This under­rep­res­ent­a­tion exists across demo­graphic categor­ies. Thus, the admin­is­tra­tion can accom­plish signi­fic­ant change with respect to profes­sional diversity even if WM judges do not resign, retire, or take senior status in suffi­ciently large numbers to move the demo­graphic needle very much in the aggreg­ate on the racial and gender dimen­sions of diversity.