Quota Quibbling?

by Ed Whelan

This New York Times article contains this surprising passage:

The Congressional Black Caucus has been critical of Republicans in Congress who are holding up judicial nominations, including for a number of black judges. The group said that out of 787 federal positions, only 95 are held by black judges.

Insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim. For the sake of argument, let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of blacks who are lawyers lawyers who are black—apparently in the four to five percent range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience**).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of federal judgeships. That would suggest a trivial disparity (again, even using a very favorable benchmark). Indeed, if the number of black judges grows by a mere four or five, blacks would be “overrepresented” on the federal judiciary.*

Live by the quota, die by the quota?

* Addendum: I now gather that the “787 federal positions” that the Congressional Black Caucus is counting do not include existing vacancies. The vacancies provide some additional headroom for more black judges before the percentage-of-population quota target would be surpassed.

** 9/26: Oops. In re-reading this, I see that I misworded things. In addition to deleting the struck-through words, I have added the italicized words.


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