Over six months in office and four waves of judicial nominees, President Joe Biden has yet to name a white male to the federal courts.
Biden has named 24 nominees for the federal bench in the opening six months of his presidency, 19 of whom are minorities. He has also vowed to name the first black woman to the Supreme Court, and may have the opportunity to do so this summer.
The selections are a plain signal that the administration’s judicial selection is driven by racial preference. The prioritization of minority nominees is unprecedented since the administration of former president Jimmy Carter, who openly placed a premium on female and minority candidates. Biden and his outside supporters frame the issue in terms of judicial legitimacy, arguing the courts will not command public confidence if they do not broadly reflect the country’s increasing diversity. The challenge, they add, was exacerbated during the Trump years, when about three-quarters of the president’s nominees were male and more than 80 percent were white.
The White House did not respond to a request for comment.
Ten of Biden's 24 nominees are black, four are Hispanic, two are Asian, one is Indian, another Pakistani, and one is a member of a Native American tribe.
The administration faces a forbidding challenge given the racial makeup of the bar. According to a 2019 American Bar Association report, 85 percent of lawyers are white, while only 10 percent are African American or Hispanic. As such, the pool of qualified minority practitioners who fall within the usual nominee age range is small.
The dynamic is also fed by Democratic senators eager to burnish their intersectional bonafides. Senators exercise significant influence over selection for district courts in their states, and Democrats have reliably recommended minority candidates for open seats.
The push for diverse judicial nominees is in tension with the competing progressive push for occupational diversity. Many judicial liberals believe the courts are too friendly to prosecutors and corporate interests because judicial nominees are often drawn from prosecutors' offices or private practice. Such nominees face easier going in the Senate, because white collar work and criminal prosecutions have, of late, generated less ideological controversy.
While Biden is elevating minority candidates at an unprecedented clip, many are drawn from the usual ranks of prosecutors and corporate attorneys. One Biden nominee, U.S. District Judge Zahid Quraishi, is the first Muslim confirmed to the federal bench. He is also a veteran of the Judge Advocate General's Corps and was a federal prosecutor in New Jersey.
"We know Biden’s stated preference for civil rights lawyers and labor lawyers for district courts is only as good as the buy-in it generates among home-state senators," Demand Justice executive director Brian Fallon said of Biden’s first wave of judicial nominees. "This means progressives need to double down on pressuring these senators, and that is what we intend to do in the months ahead."
The Senate has already confirmed seven Biden judicial nominees, outpacing his modern predecessors including former president Donald Trump. The pace has raised red flags among some judicial observers. America First Legal is seeking documents from the Justice Department under open-records laws related to judicial vetting in an effort to see if proper background checks are being conducted on the nominees.
"The American people have a right to know if there have been any arrangements or agreements to expedite the confirmation process by doing things differently than what has occurred in the past," AFL general counsel Gene Hamilton said.