There is plenty of room to criticize the Left’s heavy emphasis on racial, ethnic, and gender diversity as a criterion in selecting judges, as well as its benchmark of the overall population as the measure of “representativeness.” As law professor John McGinnis has forcefully argued, that heavy emphasis views judges as policymakers and regards race, ethnicity, and gender as proxies for policy views. Moreover, assessed by their numbers in the legal profession, racial and ethnic minorities were already “overrepresented” in the federal judiciary by a factor of two or three at the outset of the Biden administration.
In any event, by President Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success. As the Washington Post recounts, “about 75 percent of Biden’s picks are women and more than two-thirds are people of color.”
A look at Biden’s appellate nominees reinforces the point. Of Biden’s eleven confirmed nominees, only one is a white male. Nine are women, seven are minority women, and four—indeed, the first four confirmed—are black women. The other two women are (by Wikipedia’s account) “the first openly lesbian judge to serve” on a federal appellate court and an immigrant refugee from the Soviet Union. The other male nominee is Hispanic.
McGinnis also argued that “[s]electing on the axis of identity will make it less likely that the best and most articulate champions of progressive jurisprudence will get on the bench.” Whether and to what extent that will be the case is an open question.