Derrick Johnson is president and chief executive of the NAACP. Leslie Proll is its senior adviser for judicial nominations.
Fueled by the Black vote, the Democratic wins for Georgia’s two seats in the Senate — which confirms federal judicial nominees — give Biden this opportunity. He has inherited two vacancies on the appellate courts and 47 on district courts, with more vacancies expected. Numerous judges appointed by presidents Bill Clinton and Barack Obama are eligible to take senior status, which would create vacancies, and several have already announced their intent to do so. By nominating a bold and diverse slate of judges, the new president can start to reclaim the courts, seat by seat. The fierce urgency of now should be a guiding principle when it comes to restoring fairness and true representation on our federal courts.
It is difficult to overstate the harm four years of Trump’s judicial appointments caused. Many of the 234 federal judges Trump installed in lifetime jobs are dangerous ideologues who were confirmed despite long records of hostility to civil rights. Although it is true that Trump appointees held the line on overturning the 2020 presidential election, many of his appellate judges, for example, have issued extremist decisions decidedly to the right of the conservativism reflected in appointments by past Republican presidents. These decisions, which will have impact for decades, represent a clear and present danger to the progress of civil rights.
We need to resurrect the path of the civil rights lawyer to the federal bench. Such civil rights legal giants as Thurgood Marshall, Constance Baker Motley, Robert Carter, Nathaniel Jones and U.W. Clemon were appointed to judgeships between the administrations of John F. Kennedy and Jimmy Carter. But recent Democratic administrations have eschewed that practice, leaving our courts with very few judges who practiced civil rights law. We need such lawyers and other progressives back on the bench to bring some balance to courts around the country.
Trump’s judges were also the least racially diverse in modern history. Eighty-four percent of his appointees are White. The lack of truly representative appointments to appellate courts — which have the final word on most cases, given the Supreme Court’s small docket — is especially damaging. Trump appointed zero African Americans, zero Native Americans and only one Latino appellate judge — although he did appoint seven Asian Americans to appellate courts.
This dramatic retreat in judicial diversity undermines the integrity and legitimacy of the federal judiciary. Judges from different racial, ethnic and other backgrounds enrich judicial decision-making and promote trust and confidence within communities impacted by their rulings.
Trump’s alarmingly low number of racially diverse appointments has capped — and worsened — a long-term disparity. Far too many federal district courts have never had a judge of color. These include not just the overwhelmingly White districts of Vermont and Idaho, but the more diverse Western District of Louisiana, Southern District of Georgia and Western District of Virginia.
Other courts have been resegregated because judges of color have retired during the Trump years and have not been replaced with similar picks. This retreat in judicial diversity has even hit Biden’s home state: After losing a Black judge, the federal district court in Delaware is an all-White bench.
Today, we once again have an all-White appellate court, thanks to Trump: the 7th Circuit, which covers Illinois, Wisconsin and Indiana. It lost its only judge of color at the beginning of Trump’s term, and Trump appointed only White judges. Other appellate courts have lost essential representation. For example, Trump failed to include even one Latino nominee among his appointments to the 5th Circuit, which covers Texas, Louisiana and Mississippi, after the only Latino judge retired.
Representation of Black women on appellate courts has fared worst of all. Remarkably, only eight Black women have ever served on such courts. When Trump’s term began, there were seven Black female appellate judges, and three have since retired. Since Trump has appointed no Black judges — male or female — to the appellate bench, only four Black women sit on these influential courts; three are eligible for senior status.
The election of Biden promises a more inclusive judiciary. We applaud his commitment to nominating a Black woman to the Supreme Court. This would be historic and long overdue. But we can’t ignore the imperative to increase representation on the lower courts, too. Each court should reflect the rich diversity of those it serves. Trump not only halted but also reversed any progress toward that goal. The new administration will have to go into overdrive just to catch up. There is no time to waste.