What Biden’s Appointees Can Tell Us About His Supreme Court Nominee

It’s Supreme Court nomination season again. Last week, Justice Stephen Breyer announced he would be retiring from the court at the end of the term, and President Biden has announced he will nominate his nominee until the end of the term End of February. True to a campaign promiseIt is widely expected that Biden will also nominate a black woman possible replacement incl Ketanji Brown Jackson, Justice of the DC Circuit Court of Appeals; Leondra Kruger, Justice of the California Supreme Court; and J. Michelle Childs, a district judge in South Carolina — among others.

Appointing the first black woman to the Supreme Court would make history, but that is not the case stopped some from criticizing Biden for restricting his search to candidates of a specific gender and race. Underlying these complaints is the assumption that a black woman would be less qualified than other potential candidates, but our analysis shows how flawed that assumption is. We looked at data from the Federal Judicial Center and found that while Biden is diversifying the courts — in just one year he has appointed 24 percent of black women to the federal bench — it’s just not true that he prioritizes diversity over qualifications , which are normally used to evaluate judges. Indeed, his appointments to the lower court are well more highly qualified on those metrics than the judges selected by previous presidents, and that’s especially true of the black women he nominated.

When we assessed last December how well Biden was delivering on his promise to expand the diversity of the court, we found that the vast majority of his appointments were people of color. Almost two months later, another 14 justices were confirmed — bringing the number of people appointed by Biden to 42 — and the justices Biden appointed are still far more diverse than those appointed by previous presidents.

Two-tier charts showing how President Biden has appointed the largest proportion of nonwhite and female judges to the circuit and appellate courts compared to other presidents since Jimmy Carter.

Biden has been more focused than his predecessors, particularly in appointing black women, who are grossly underrepresented in the federal judiciary. So far, more than a quarter (26 percent) of Biden’s appointments are black women, including five black women who have been nominated for courts of appeal.

Waffle chart showing the proportion of black female appellate or district judges appointed by the President since Jimmy Carter.  Over a quarter of Biden's judges have been black women, more than any president since Carter.

Put another way, Black women make up just 6 percent of active federal judges — and 24 percent have been appointed by Biden in the year since he took office. Perhaps more strikingly, five of the nine black women currently serving as appellate court judges were appointed by Biden.

Biden is also diversifying the courts in other ways. According to our analysis, many of Biden’s appointments come from professional backgrounds not typical of federal judges. In the past, it was a common path for judges to work as prosecutors: about 40 percent of those appointed by Obama and Trump have served as prosecutors at some point. However, Biden’s appointments are different. They’re far less likely to have worked in the prosecution — and more likely in advocacy and public defense.

Sankey chart showing the proportion of district and appellate judges by career background for Obama, Trump, and Biden.  Biden has appointed the largest proportion of judges with a legal or public defense background and a smaller proportion of judges with a prosecutorial career background compared to his predecessors.
Sankey chart showing the proportion of district and appellate judges by career background for Obama, Trump, and Biden.  Biden has appointed the largest proportion of judges with a legal or public defense background and a smaller proportion of judges with a prosecutorial career background compared to his predecessors.

Biden may be trying to avoid nominating additional white, male former prosecutors to the bench — but he’s not avoiding other traditional qualifications for judges. When it comes to education, Biden’s appointments rank even higher than appointments made by other presidents. Nearly 30 percent of those appointed by Biden attended Ivy League universities for their bachelor’s degrees, and nearly 60 percent attended top law school.

Many of Biden’s law officers attended elite schools

Proportion of appellate and district judges graduating from an Ivy League institution or top 14 law schools, by president, as of January 31, 2022

Graduated from an undergrad Ivy League school
president number of judges Total judge divide
Jimmy Carter 29 261 11.1%

Ronald Reagan 56 355 15.8

George HW Bush 28 187 15.0

bill clinton 48 365 13.2

George W Bush 29 321 9.0

Barack Obama 64 318 20.1

donald trump 24 224 10.7

Joseph Biden 12 42 28.6

Graduated from a top 14 law school
president number of judges Total judge divide
Jimmy Carter 91 261 34.9%

Ronald Reagan 123 355 34.6

George HW Bush 56 187 29.9

bill clinton 135 365 37.0

George W Bush 84 321 26.2

Barack Obama 131 318 41.2

donald trump 76 224 33.9

Joseph Biden 25 42 59.5

In the 1970s, law schools changed the name of the degree they awarded from LL.B. to JD We treat LL.B degrees awarded before 1970 as equivalent to JD degrees in our analysis.

If a judge was reappointed by a President, we only counted him once.

Source: Federal Justice Center

Instead of being less qualified than their white counterparts, black women actually are more highly qualified than the average Biden judge. We found that black women were particularly likely to have attended an elite institution. More than a third (36 percent) of the black women Biden presented to the courts attended an Ivy League university, and 82 percent attended senior law school. Black women also stood out among Biden’s appointments on another metric commonly used to evaluate judges: American Bar Association ratings for federal justice candidates.

Overall, we found that black jurors did indeed have lower ABA ratings than white jurors, but that shouldn’t be taken as a sign that they’re less qualified. Political scientists found out that minority judicial candidates tend to receive lower ratings than white nominees, even when education and experience are accounted for. However, the vast majority (82 percent) of Biden’s nominees of black women received the ABA’s highest rating in their first Bundesbank nomination. That’s all the more impressive when you consider that it’s harder for black judge candidates to get a high ABA rating.

This shows that Biden is not sacrificing traditional qualifications in the pursuit of diversity. If anything, he seems to favor black women with highly polished legal resumes for judge appointments — perhaps in anticipation of exactly the kind of complaints about “diversity picks” we’re already seeing.

In fact, the potential candidates to replace Breyer are very similar to the federal judges Biden has appointed to date. Like Biden’s other judges, the prospective nominees have typically worked in public defense or civil service; Jackson is a former public defender, and Kruger worked in the Obama administration. Potential candidates also have many traditional qualifications, such as Ivy League degrees, experience as a judge, high ratings from national and state bar associations, and Supreme Court internships. In fact, Jackson and Kruger are very similar to current Supreme Court Justices, most of whom attended Ivy League universities or law schools, worked for another Supreme Court Justice, and served as federal judges.

Of course, it has to be argued that having so little educational and professional diversity on the Supreme Court is actually a bad thing. Judge Clarence Thomas, who attended Yale law school but wrote that he saves the degree in his basement with a 15 cent sticker on the frame, got out of the way hire employees who have not attended Ivy League schools, to quarrel that directing the legal profession towards elite schools does not produce better lawyers. South Carolina Democratic Rep. Jim Clyburn has argued that Breyer’s potential replacement candidate, Childs, as a Southerner with a working-class background, would place more value on the court than any other attorney trained by Ivy.

Even so, it is undeniable that all of Biden’s nominees are highly qualified to serve on the federal courts, as are his potential Supreme Court nominees. Now they offer other kinds of diversity that are rare in the current court — and in the federal justice system as a whole.

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