Elsie L. Scott, Ph.D.

Judicial Makeup and Its Implications on Our Rights and Freedoms

Director of the Ronald W. Walters Leadership & Public Policy Center, Howard University

For many years, the U.S. Federal judiciary has been a White man’s club. The first Black man to serve on the Federal bench was William Hastie who was appointed by President Franklin D. Roosevelt in 1937 to serve on the Federal District Court of the Virgin Islands. The first Black woman, Constance Baker Motley, was not appointed until 1966 when President Lyndon B. Johnson appointed her to the Federal circuit court. No Black women served on the Federal appellate courts until 1979 when Amalya Kearse was appointed to the Second Circuit. As of January 2024, only 98 Black women have served as Federal judges. Interestingly, a little over one-third of that number have been appointed by President Joe Biden.

All federal judges are appointed by the President of the United States, but they must be confirmed by the U.S. Senate. One of the most important reasons why Black people need to vote in the upcoming November election is to ensure that people who are fair and impartial arbiters are appointed to the federal courts. When Trump ran for President in 2016, he ran on a platform of getting a Supreme Court that could overturn the Roe v. Wade Supreme Court decision. Unfortunately, he was successful in making good on his promise. Not only did he appoint three Supreme Court Justices, he also appointed 54 judges to the appellate courts and 174 judges to the U.S. district courts. In one term as President, he appointed over one-fourth of all Federal judges. With lifetime appointments and many relatively young nominees, his influence on the federal courts will be felt for many years.

There is a significant difference in the number of appointments made by Trump, Obama, W. Bush, and Clinton when gender and judicial appointments are considered. Clinton, Bush, and Obama helped to improve gender diversity. Trump helped to reverse the positive changes made by his predecessors (Jeknik et. al, 2021). Obama appointed 315 judges during his two terms, 47 percent were women (Gramlich, 2023). Comparatively, only 24 percent of Trump’s appointments were women. Biden is the first President to appoint more women to the Federal judiciary than men — 64 percent (Mourtoupalas, 2024). It should be noted that Biden has appointed a record number of Black women to the bench, including the appointment of the first Black woman Supreme Court justice. At the end of February 2024, the U.S. Senate reported that they had confirmed a record 36 Black women judges nominated by Biden.

The Importance of a Diverse, Qualified Judiciary

When I wrote my master’s thesis on federal judges and political change in Louisiana from 1959-1965, there was an expectation of some resistance to new Federal civil rights legislation by deep South judges. Yet, for the most part, judges were not expected to be activists who came to the courts to push a political agenda that had no grounding in democracy and due process. Today, there are Supreme Court justices whose wives are political activists who support organizations and movements that seem to be anti-democratic. Some judicial nominees with no judicial experience, and others who have openly opposed the Affordable Care Act have received appointments. Overturning Roe v. Wade became the litmus test for nomination before it was overturned in 2022.

Elections have consequences, and some of the consequences can have detrimental effects on the everyday lives of Black women and their families. Presidential and senatorial selections can influence lives for many years to come because federal judges have lifetime appointments. For example, a 37-year-old woman received a lifetime appointment to the Circuit Court of Appeals in 2019 by a party-line vote of 53–44. She was even on the list of judges considered for the Supreme Court when Justice Ginsberg died in 2020.

It can be expected that there will be future challenges to the Voting Rights Act (VRA) and voting rights in general. The Shelby v. Holder ruling in 2013 invalidated Section 4(b) of the Voting Rights Act that provided the formula for determining which jurisdictions must seek preclearance for new voting law changes. States that were covered in the VRA have passed laws or approved of voting maps that are viewed as discriminatory and designed to reduce voter registration as well as voter participation by Black citizens. For example, despite the Supreme Court’s affirmation of the district court’s ruling that the Alabama congressional district maps violated the Voting Rights Act, Alabama redrew districts that were rejected by the Supreme Court.

There are cases and/or issues that will be brought to the federal courts that directly or indirectly affect Black women. Some are already on their way through the system, and they will be resolved by elected officials who will be on the ballot in November. For example, the 11th Circuit Court of Appeals in a 2-1 decision found that the Fearless Fund’s grant program for Black women violates the 1866 Civil Rights Act. In addition, cases related to affirmative action, Diversity Equity, and Inclusion (DEI), as well as school curriculum can be expected to be heard at all levels of the court system.

References

Gramlich, J. (2023, December 4). Most of Biden’s Appointed Judges To Date Are Women, Racial or Ethnic Minorities – A First For Any President. Pew Research Center. https://www.pewresearch.org/short-reads/2023/12/04/most-of-bidens-appointed-judges-to-date-are-women-racial-or-ethnic-minorities-a-first-for-any-president/

Jeknik, P., Spill Solberg, R., Waltenburg, E., & Stout, C. (2021). Trump’s Judges and Diversity: Regression to the Mean or Remaking the Judiciary? In Open Judicial Politics. Oregon State University. Retrieved from https://open.oregonstate.education/open-judicial-politics/chapter/trumps-judges-and-diversity/.

Mourtoupalas, N. (2024, May 17). Biden’s Federal Judge Picks Are Majority Non-white and Female - The Washington Post. https://www.washingtonpost.com/politics/2024/05/17/biden-trump-judges-diversity/