Bench Memos

Law & the Courts

Trump’s Judicial Picks and ‘Diversity’

President Trump has received a lot of criticism from the usual suspects for the alleged lack of “diversity” in his judicial nominations. Having engaged in some admittedly scattershot exchanges on the topic with various folks on Twitter over the past couple of days, I figured I’d undertake a stand-alone account of my views on the matter.

1. Let’s start with the bean counting. For this purpose, I am using the (left-wing) Alliance for Justice’s “diversity statistics” as of April 25, 2018, but am rounding the statistics to the nearest percentage point.

Of Trump’s confirmed nominees, 76% are male and 24% are female. Of his other nominees (both pending and withdrawn), 74% are male and 26% are female. Combining the numbers yields an aggregate of 75% male and 25% female.

According to AFJ’s numbers, for their confirmed nominees over the entirety of their presidencies, Barack Obama had a 58/42 split, George W. Bush had a 78/22 split, and Bill Clinton had a 71/29 split. So Trump’s numbers are in the same ballpark as Bush’s and Clinton’s—a slightly higher percentage of women than Bush and a slightly lower percentage than Clinton.

On race/ethnicity: Of Trump’s confirmed nominees, 9%—three “Asian Pacific American” appointees—are minorities. Of his other nominees, 9% are minorities: three Hispanics, two Asian Pacific Americans, and one African American (who, by the way, has been awaiting a Senate floor vote since December).

Nearly 36% of Obama’s judicial appointees were minorities. The figure for Bush was 18% and for Clinton 25%. So Trump’s percentage of minority nominees is only half of Bush’s figure and far below Obama’s and Clinton’s.

2. What “diversity statistics” should we expect in a president’s judicial nominations? Well, some with a very robust quota mentality (like this law professor and—surprise!—former clerk to Justice Sotomayor) seem to think that the goal should be to have different subgroups “represented on the bench” in accordance with their numbers in the population. I won’t join argument on that position here, but will instead note it and set it aside.

My own take is that a president is entitled to select nominees who share his Administration’s judicial philosophy and who are supporters of—or, at the very least, who are not critics of—the president. Further, I’d expect candidates to be broadly in the age range of 40 to 55 and to have the sort of professional qualifications that would generate a favorable rating from the American Bar Association.

3. It’s not easy to generate a reasonable estimate of the demographic breakdown of the pool of candidates that this approach would yield for the Trump administration. But let’s sort out what we can.

According to 2018 data from the ABA, 64% of active attorneys are male and 36% are female. Further, 85% are white and only 15% are minorities. (I haven’t found a breakdown by age. Perhaps the female and minority numbers are somewhat higher in the 40-to-55 age bracket, but it seems at least as plausible that the higher numbers are in the younger age bracket.)

One study concludes (see figure 3 here and accompanying text) that female lawyers are “significantly more liberal” than male lawyers, “even when controlling for a number of other salient characteristics like years since bar passage.” (I’d guess the same is true for minority lawyers versus white lawyers.)

Women lawyers “are much more likely [than male lawyers] to exit the workforce in order to focus on childcare.” It’s a safe bet that the disparity is even greater between conservative women lawyers and conservative men lawyers.

In the 2016 election, 52% of men voted for Trump, while only 41% of women did; 57% of whites voted for Trump, while only 8% of African Americans, 28% of Hispanics, and 27% of Asians did.

Again, it’s too complicated a matter for me to try to integrate all these statistics to estimate the demographics of the Trump judicial-candidate pool. But I’d be surprised if any serious effort would yield numbers higher than 25% female and 9% minority.

4. Some on Twitter imagine that these numbers are somehow an indictment of conservative judicial philosophy. Take Ian Millhiser—please! But this is a massive non sequitur. Set aside the oddity that Millhiser seems to think that the only women whose views count are liberal women. The soundness of an idea or of a philosophy does not turn on the number of people who embrace it.

Further, the percentage of women in the hypothetical candidate pool does not speak meaningfully, if at all, to the percentage of highly educated women lawyers (or of women more generally) who support conservative judicial philosophy. As noted, conservative women are much more likely than conservative men to take time off in the formative years of their careers to give birth and to raise their kids. They also might well be more likely to pursue fields with predictable or flexible hours and little out-of-town travel. They might be more likely to face discrimination from legal academia. I’m not going to try to quantify the cumulative effect of such factors. I’ll limit myself to the observation that even if one were to assume an even male-female split among proponents of conservative judicial philosophy, there is ample reason to expect a much more skewed candidate pool.

5. From everything I’ve heard over the past 16 months, the White House is vigorously seeking female and minority judicial candidates. The nomination statistics, fairly construed, don’t provide any evidence to the contrary. Nor have I heard any anecdotal evidence. (Indeed, when I’ve pressed folks to identify women that the Trump Administration should have nominated, I’ve received names of unsuccessful Obama nominees or of women in their 60s.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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