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.