Yesterday the Mexican American Legal Defense and Educational Fund issued a remarkable statement slamming President Biden for his “ongoing shabby treatment of the Latino community” in judicial nominations. MALDEF’s condemnation of Biden provides a stark illustration of the incoherence of the Left’s demand for diversity.
What triggered MALDEF’s attack on Biden was the White House’s announcement of three new federal appellate nominees: Florence Pan to the D.C. Circuit (filling the seat that Judge Ketanji Brown Jackson will vacate); Rachel Bloomekatz to the Sixth Circuit; and Doris Pryor to the Seventh Circuit. These picks continue President Biden’s remarkable success of meeting his (highly dubious) standard of demographic diversity: All three are women, meaning that 20 of Biden’s 27 appellate picks are female. Pan is Biden’s fifth appellate pick of Asian ancestry, and Pryor is his tenth black appellate nominee (and ninth black woman).
MALDEF is upset that Latinos aren’t faring nearly as well as blacks and Asian Americans in the competition for judicial nominations. In its statement, MALDEF complained that “the Biden Administration chose yet again to send a harsh message of exclusion to the Latino community.” MALDEF continued with this amazing passage:
The timing of today’s announcement is also disturbing. Yesterday, 19 children were murdered at a Texas elementary school with an overwhelmingly Latino student body. Yet, President Biden chose today to teach Latino schoolchildren nationwide that they should stem their future ambitions because he at least does not believe that they warrant inclusion on the nation’s most important federal courts. Inexplicable timing, but President Biden apparently simply does not care.
Indeed, five times in its statement MALDEF charged that Biden “apparently simply does not care” about remedying what it contends is the “historic underrepresentation” of Latinos in the federal judiciary. And MALDEF closes with this stark warning to Biden:
[I]f you explicitly and consistently demonstrate that you do not care about Latinos, you should not expect them to care about you when it comes time to vote.
Bureaucratic bean counting amply supports MALDEF’s complaint about mistreatment relative to other minorities. Latinos account for slightly more lawyers than African Americans do (see point 3 here), and they make up a much larger share of the American population. But whereas Biden has nominated ten African Americans, he has, by my count, nominated only four Latinos. (First Circuit nominee Lara Montecalvo’s maiden surname was Ewens, and, from what I can tell, does not identify as a Latina.) And one of those four, Gustavo Gelpí, was to the Puerto Rico seat on the First Circuit, where it would have been difficult not to nominate a Latino.
In further support of MALDEF, it’s also striking that Pan would become the third Asian American on the 11-member D.C. Circuit, which also has three African Americans (and will continue to do so after Judge Jackson takes her seat on the Supreme Court and Judge Michelle Childs fills another vacancy). By contrast, as MALDEF points out, the D.C. Circuit has never had a Latino judge.
But one big reason that the D.C. Circuit has never had a Latino judge is that MALDEF itself led the way in opposing President George W. Bush’s nomination of the superbly qualified Miguel Estrada to that court two decades ago. More broadly, I find it difficult to appreciate MALDEF’s complaint that Latinos are “the only racial minority group” that has “not received nominations in proportions that are multiples of population parity.”
MALDEF acknowledges that “Latinos have received about 20 percent of the Biden nominations[, …] equivalent to the Latino proportion of the nation’s total population.” If you’re going to play the diversity game, I don’t understand why proportion of the nation’s lawyers isn’t a much more sensible benchmark. By that standard, Biden has over-nominated Latinos by a factor of four. If MALDEF is instead going to insist on “nominations in proportions that are multiples of population parity,” does that mean that it thinks that Latinos should receive 40% or 60% of all judicial nominations?
I would also be curious what MALDEF’s claim of “historic underrepresentation” of Latinos in the federal judiciary means. Latinos did not account for even one percent of the United States population until around a century ago and were under ten percent as recently as 1990. Being Latino has been a big plus in the judicial-selection process for decades. That’s been true for presidents of both parties: Republican presidents have appointed 62 Latino judges (recall that George H.W. Bush appointed Sonia Sotomayor to the federal bench when she was only 38), versus 79 for Democratic presidents. Latino judges make up more than nine percent of active federal judges—nearly double the percentage of lawyers who are Latino.