The Washington PostDemocracy Dies in Darkness

Democrats question absence of black or Hispanic nominees among Trump’s 41 circuit court judges

President Trump watches as Brett M. Kavanaugh, surrounded by his family, is sworn in as a Supreme Court justice during a ceremony in the White House in October. (Jabin Botsford/The Washington Post)

The Senate has confirmed President Trump’s judicial nominees to the circuit courts at an unprecedented pace, giving the Republican more than 1 out of every 5 judges on the powerful appellate bench.

Not one of the 41 judges is black or Hispanic. Five of the judges are Asian American.

Trump has boasted about his success in remaking the federal judiciary during his 2½ years in office, installing strong conservatives who will serve for years. While his nominees to the circuit courts are predominantly male and white, a handful are Asian American, most notably James C. Ho on the U.S. Court of Appeals for the 5th Circuit, Michael Hun Park on the 2nd Circuit and Neomi Rao on the D.C. Circuit.

But the absence of any black or Hispanic nominees for the 13 circuit courts has drawn criticism from Democrats and civil rights groups, as the judges make decisions affecting daily life for millions of Americans, ruling in some 60,000 cases a year.

Among the lower-level district courts, 2 percent of Trump’s appointees are black, 2 percent are Hispanic, and 4 percent are Asian American.

Trump’s judicial choices for the circuit courts stand in contrast to those of his predecessors — Democratic and Republican. President Barack Obama made racial and ethnic diversity a top priority, and 27 percent of his circuit court appointees were black or Hispanic, according to the Congressional Research Service. Fifteen percent of President George W. Bush’s appointees were black or Hispanic.

Trump’s success with court picks is not only a campaign applause line but is also an issue certain to energize conservative voters in his bid for a second term in 2020. The appeals courts are immersed in the major issues of the day, including the Trump administration’s policy on family-planning funding, the border wall and congressional subpoenas seeking access to Trump’s financial records.

The White House didn’t respond to a request for comment about the lack of diversity among the president’s circuit court nominees.

The Senate on Monday moved ahead on Trump’s 42nd nominee: Daniel Bress, a former clerk to the late Supreme Court justice Antonin Scalia, picked for the California-based 9th Circuit. If confirmed Tuesday, Bress would be Trump’s seventh nominee for the 29-member court.

California’s senators, Sens. Kamala D. Harris and Dianne Feinstein, both Democrats, oppose the nominee, arguing that the Washington lawyer has not resided or worked in the state recently.

“As senators we have a right to demand that an individual being nominated to represent our state on the circuit court actually be a practicing lawyer based in our state,” Feinstein, the ranking Democrat on the Judiciary Committee, said last month.

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While some Republican senators have talked about the need for diversity, many argue that the most qualified candidates should ultimately be appointed. When asked about concerns regarding racial diversity, Sen. Josh Hawley (R-Mo.), another Judiciary Committee member, said of Trump, “I think he’s nominated really excellent judges, and I hope he keeps it up.”

Sen. John Cornyn (R-Tex.) cited a recent Trump nominee to a Texas district court, Jason Pulliam, who is African American. He added that Trump has more time and many more judicial appointments to make.

Senate Majority Leader Mitch McConnell (R-Ky.) has been determined to ensure that Trump’s nominees are confirmed, with Republicans changing long-standing Senate rules and practices to speed the process, over the objections of Democrats. The GOP has limited debate time, undercutting the opposition party’s efforts to drag out the discussions, and scrapped an agreement that both home-state senators sign off before a nomination moves ahead.

Trump has secured Senate confirmation of 123 judges in 2½ years — two associates on the Supreme Court, 41 on circuit courts and 80 on district courts.

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Democrats said that they have proposed people of color for potential judgeships but that the administration has cut them out of the process. As members of the minority party, Democrats lack the votes to stop Trump nominees unless enough GOP senators also oppose them.

Trump’s “record on women and people of color to all the courts is absolutely abysmal,” said Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee. “There is no way the courts of America will look like the American people if he continues to fail in appointing people of color, women, to the courts, courts of appeals and the federal district courts.”

During the 2016 campaign, Trump notably criticized District Judge Gonzalo P. Curiel, who was targeted while he was hearing a class-action lawsuit against the president’s now-defunct Trump University.

Trump frequently used Curiel’s ethnicity to question his impartiality. Trump falsely asserted that Curiel was “Mexican” — the judge was born in Indiana — and other times said he was “Hispanic” or “Spanish,” seemingly in an attempt to argue that the judge was biased because of Trump’s views on immigration, including his calls for a border wall.

Kristine Lucius, an executive vice president at the Leadership Conference on Civil and Human Rights, argued that the spat between the federal judge and the then-candidate could have predicted the homogeneity of Trump’s judicial nominees.

“Institutions have to have public confidence that they are reflective of the community and responsive of the community,” said Lucius, who worked for the Senate Judiciary Committee under then-Chairman Patrick J. Leahy (D-Vt.).

A vacancy on the U.S. Court of Appeals for the 3rd Circuit, with jurisdiction over Delaware, New Jersey, parts of Pennsylvania and the Virgin Islands, underscores the fierce political fights over federal judges and Trump’s ability to shape the courts for years to come.

In March 2016, Obama nominated Rebecca Ross Haywood to serve on the 3rd Circuit. Haywood was an assistant U.S. attorney in the Western District of Pennsylvania, where she had served as chief of the appellate division; was rated unanimously well-qualified by the American Bar Association; and, if confirmed, would have been the first African American woman on the circuit court.

She never got a hearing, as McConnell and the Republican-led Senate were willing to allow the seat to remain vacant during Obama’s final year in office. It was the same approach McConnell adopted for Obama Supreme Court nominee Merrick Garland.

Separately, one of Haywood’s home-state senators, Sen. Patrick J. Toomey (R-Pa.), opposed the nominee.

All four of Trump’s nominees to the 3rd Circuit have been white men, including Peter Phipps, a recent Trump district court appointee who earned the backing of the Judiciary Committee last month on a party-line vote.

“Rebecca Ross Haywood, she was every bit as qualified as Peter Phipps . . . maybe more so because she had longer experience in government itself at a very high position,” Sen. Robert P. Casey Jr. (D-Pa.) told The Washington Post. “You have a number of potential nominees who are both well-qualified with a deep reservoir of experience and also happen to be diverse, and I think that was the case — certainly was the case — back in the Obama administration, when she was nominated.”

Casey opposes the Phipps nomination, citing his lack of experience and concerns about his judicial philosophy.

In announcing her opposition to Phipps’s nomination, Feinstein said that “some of the most racially diverse cities in the country are in the Third Circuit.”

But the Democratic opposition probably will not change the outcome of the vote in the Senate, where Republicans hold a 53-to-47 advantage.

Sen. Lindsey O. Graham (R-S.C.), chairman of the Judiciary Committee, called Phipps “one of the most impressive nominees for the U.S. Circuit Courts.” Phipps was rated well-qualified by a substantial majority of the American Bar Association.