Bench Memos

Law & the Courts

‘Underrepresented’ in the Judiciary?

A Washington Post article yesterday highlights President Biden’s efforts “to boost minority and female representation on the federal courts.” The benchmark that the article uses to measure representativeness is percentage of the overall population.

One striking tidbit is that even by that standard black men are overrepresented in the federal judiciary: They account for 7.9 percent of active federal judges but only 6.8 percent of the population.

Another item: “President Biden has nominated 11 minority women, 4 minority men and 4 White women. He has not yet nominated any White men.”

Which benchmark (if any) to adopt depends, of course, on what you deem relevant. If you view judges first and foremost as representatives, then the benchmark of the overall population is sensible. (I think the view of judges as representatives is deeply misguided, for the reasons law professor John McGinnis sketches in this excellent essay.)

If your concern instead is to discern whether there has been deliberate or inadvertent discrimination in the selection of judges, then it would make far more sense to use as a benchmark the cohort of lawyers with the experience and qualifications to be eligible to be judges (and, if you’re looking at the actions of a particular judge-picker, you’d further narrow that by looking to the cohort that shares the judicial philosophy that the judge-picker is seeking).

I’m not aware of any readily available statistics that break down by race and ethnicity the percentage of lawyers who are, say, 40 or older, much less who have the qualifications that would render them broadly eligible to be considered for federal judgeships. What I do have is the American Bar Association’s 2020 Profile of the Legal Profession. According to that report (p. 109), 85.9 percent of American lawyers are white, 4.7 percent are African American, 4.6 percent are Hispanic, and 2.1 percent are Asian American.

Given the ongoing demographic changes in the legal profession, it’s safe to assume that the older cohort of lawyers with the experience and qualifications to be eligible to be considered for federal judgeships would have an even higher percentage of whites. But for present purposes let’s stick with the ABA’s numbers and compare them to the WaPo data.

By this benchmark, it turns out that whites are underrepresented in the federal judiciary: They account for 85.9 percent of lawyers but only 72 percent of active federal judges. Meanwhile, African Americans are overrepresented by a factor of nearly three: They make up 12.7 percent of active federal judges while accounting for only 4.8 percent of lawyers. Hispanics are doubly overrepresented: 9 percent of active federal judges versus 4.6 percent of lawyers. Ditto for Asian Americans: 4.7 percent of active federal judges versus 2.1 percent of lawyers.

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