Intersection. Reimagining Federal Courts

• Author: Liane Jackson
• Pages: 9-10

Intersection is a

column that explores

issues of race, gender

and law across

America’s criminal

and social justice

landscape.

America’s third branch of

government has been at the

epicenter of the news cycle

in recent years, with the

death of Justice Ruth Bader Ginsburg,

high-prole battles over U.S. Supreme

Court nominations, and controver-

sy over election results putting the

power and inuence of the bench into

full focus.

We have seen that courts can be

an instrument for social and political

change; they can be the sword and the

shield. But they best serve justice when

they are inclusive—a perennial chal-

lenge for the federal judiciary.

Conservative strategists early on rec-

ognized the power potential of seeding

the courts with like-minded ideologues

and have been playing the long game

for years. Sen. Mitch McConnell, R-Ky,

with assistance from the Federalist

Society and other right-wing groups,

has been able to stack the federal

judiciary with conservative judges.

After Republicans gained control of the

Senate in 2015, then-Majority Leader

McConnell blocked more than 70% of

then-President Barack Obama’s judicial

nominations—including Supreme Court

choice Merrick Garland—in order to

preserve judicial picks for a Republican

president. And once the presidency was

secured, McConnell was able to push

through hundreds of far right-aligned

judges at a record pace, including three

Supreme Court justices. The senator’s

promise to “leave no vacancy behind”

was implemented with ruthless speed

and devastating consequences for diver-

sity in the courts.

By the end of his term, former

President Donald Trump had appointed

more than 200 Article III judges, a class

with the dubious distinction of being

the least diverse pool in the modern era.

A left-out legacy

Instead of reecting America’s melting

pot, architects of this judicial reshaping

sought candidates who evinced extreme

right-wing philosophies, even when

they lacked experience or had troubling

commentary in their pasts.

Trump-appointed judges were over-

whelmingly white, male and conser-

vative: More than 76% were men and

84% were white, according to data col-

lected by the American Constitution So-

ciety. Comparatively, 58% of Obama’s

appointees were male and 64% were

white. While Obama holds the record

for the most diverse appointments to

the federal bench, past presidents from

all parties have made at least a de mi-

nimis effort to reect gender and ethnic

diversity in their appointments. But not

the Trump administration.

Why should this matter? Because

judges are not blank slates—their

biases, ideologies and professional and

life experiences inuence how they rule,

whether it’s on voting rights, reproduc-

tive choice, criminal justice, religion, im-

migration, the environment, labor issues

or gun control. The judiciary holds an

INTERSECTION

Reimagining

Federal

Courts

Biden’s opportunity to reform

and diversify

BY LIANE JACKSON

edited by

LIANE JACKSON

liane.jackson@americanbar.org

ABA JOURNAL | APRIL–MAY 2021

9

Inter Alia

Photos by Callie Lipkin/ABA Journal; Shutterstock

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