Diversity in Federal Judicial Selection During the Biden Administration

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.