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Trump on course for least diverse judicial picks since Reagan



CQ-Roll Call
Tuesday, November 14, 2017

WASHINGTON — President Donald Trump’s picks for federal judgeships reflect a strikingly different direction when it comes to diversity on the bench — it is the most white and male group of nominees in recent history.

So far, 91 percent of Trump’s 58 judicial nominees for district and appeals courts are white, a pace that would make his appointees the least diverse since the Reagan administration, according to statistics compiled by the liberal advocacy group Alliance for Justice. Only 19 percent of his picks are women, a pace that would make his appointees the most male since the George H.W. Bush administration.

Compare that to President Barack Obama, who made adding diversity to the federal benches a priority in his judicial selection process. Of his 329 appointees, 64 percent are white, the lowest percentage of any president. Forty-two percent are women, the highest of any president, according to the Alliance statistics.

Trump’s “nearly exclusive focus on white males” will only serve to undermine the general public’s confidence in the justice system when they enter a courtroom, said Nan Aron, founder and president of Alliance for Justice.

“Diversity only enhances one’s confidence in his or her ability to appear before individuals who have open minds, different experiences,” Aron said.

Trump’s shift back toward a whiter, more male bench comes amid simmering racial tensions across the nation that have been stoked by the president. He has criticized professional football players who kneel during the national anthem to draw attention to how law enforcement treats minorities. He told reporters there were bad actors on “both sides” of a violent clash between white supremacist protestors and counterprotesters over the removal of a statue of Confederate general Robert E. Lee in Charlottesville, Va.

Trump has repeatedly referred to “our heritage” when speaking about Confederate monuments, such as when he backed Republican Ed Gillespie in a tweet that said the candidate for Virginia governor could “save our great statutes/heritage!”

And the trends hold in more than just federal court picks. Trump has a whiter and more male Cabinet than the previous four presidents. His picks for U.S. attorneys are almost exclusively men.

“I think, unfortunately, if you look at his Cabinet, if you look at his misremembering history, I think he is deliberately trying to whiten the country,” Rep. Cedric L. Richmond, chairman of the Congressional Black Caucus, said about Trump’s judicial picks.

“If President Obama nominated 91 percent African-Americans, everybody would have been up in arms. They would have called him racist. They would have continued to bash him,” the Louisiana Democrat said. “Now that it’s opposite, nobody’s saying anything.”

As a Republican president, Trump’s picks also trend conservative in ideology. While a state’s senators have great say in judicial recommendations to the White House, the administration can set a tone for what type of nominees a president will appoint.

“The President has delivered on his promise to nominate the best, most-qualified judges, period,” White House Deputy Press Secretary Hogan Gidley said in a statement when asked about the diversity statistics. “While past Presidents may have chosen to nominate activist judges with a political agenda and a history of legislating from the bench, President Trump has nominated outstanding originalist judges who respect the U.S. Constitution.”

Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said Trump’s nominees represent “an impressive range of backgrounds and experiences.”

“Justice David Stras is the Jewish grandson of Holocaust survivors,” Severino said in a statement. “Judge Amul Thapar was the first American of South Asian descent on the federal bench. Professor Stephanos Bibas and Greg Katsas are the sons of Greek immigrants.”

“Professor Amy Coney Barrett is a remarkable model of a woman who balances a large family with a brilliant academic career and yet Democrats shamefully criticized her for being too Catholic,” Severino said. “Justice Don Willett grew up living in a trailer home.”

For Democrats, the lack of diversity stacks on top of other concerns that Trump’s judicial picks are ideologues when it comes to civil rights, a woman’s right to an abortion, voter rights and more.

Senate Judiciary ranking member Dianne Feinstein expressed some initial disbelief in the statistics and called it “a striking reversal” from Obama’s nominees that will skew the federal courts.

“It seems to me it’s pretty thoughtless to get there, with those numbers,” the California Democrat said.

The effect can be seen most clearly in judicial districts like the Eastern District of North Carolina, which advocacy groups say is nearly 30 percent black but has never had a black federal judge. Obama nominated two black women to the vacancy, but Republican senators blocked those picks.

Trump’s nominee for the spot is Thomas Farr, a white Raleigh lawyer with connections to Republicans in the Tar Heel State who has defended the state’s congressional redistricting plans and election laws. Federal courts have struck down those laws as unfair to minorities, with one appeals court concluding the voter ID law targeted African-Americans “with almost surgical precision.”

Farr, when questioned about the case at his confirmation hearing in September, testified that the appeals court decision “is binding on everyone, and as a judge, I would have to follow it and I will follow it.”

“But at the time our clients enacted those laws, I do not believe they thought they were purposely discriminating against African-Americans,” Farr told the Judiciary Committee.

Richmond, himself a lawyer, said having a less diverse bench recalled days when African-American lawyers would go into a courtroom and the judge said to the opposing attorneys, “’Hey Peter, how’s your kids, how’s everything,’ and all of a sudden, you don’t have any relationship there.”

“It’s a real concern when you want people to have faith in a justice system,” Richmond said.

Another black lawmaker, Virginia Democratic Rep. Robert C. Scott, summed it up this way: “You like your judiciary to reflect the diversity of the nation.”

Yet the Congressional Black Caucus and Senate Democrats are powerless to stop Farr’s confirmation without the help of Republicans, who show no signs of doing so. Last month, the Senate Judiciary Committee voted 11-9, along party lines, to advance his nomination to the floor, where it awaits action.

There are 21 judicial nominees awaiting votes on the Senate floor, Senate Judiciary Committee staff said, and confirmation votes are set for two district court nominees this week. Trump has 137 vacancies on the district and appeals courts he could fill, according to the Administrative Office of the U.S. Courts.

Republicans, faced with pressure from conservative groups, moved five judicial nominees through the Senate floor the week of Oct. 30.

Senate Majority Whip John Cornyn tweaked Democrats on the Senate floor Nov. 1 for having “forgotten some of their own priorities when it comes to judges,” since they were forcing time-consuming procedural votes to overcome filibusters on three women nominated to appeals courts.

“For example, the senior senator from Minnesota has said in the past: ‘It is time to get women on the bench.’ Well, we just did that yesterday, and we are going to do it again,” the Texas Republican said. “There is still time, however, for our Democratic colleagues to honor their previous statements and to put more women on the circuit courts without needlessly stringing them along with unnecessary delays.”

Those three women judges, however, are the only women among the 13 judges the Senate has confirmed this year — or just 23 percent. Democrats had expressed opposition over concerns about the nominees’ positions on abortion rights and other issues.

Cornyn later told Roll Call he wouldn’t pick any arbitrary number in terms of the gender balance of Trump’s nominees. But he would like to see Trump pick more women.

“As a father of two daughters, sure,” Cornyn said.

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