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on Biden’s extraordinary record on black female appellate nominations

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Ed Whelan <ewhelan@eppc.org> UnsubscribeJan 6, 2022, 1:00 PM (1 day ago)
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From NRO’s Bench Memos:

Biden’s Extraordinary Record on Black Female Appellate Nominations

By ED WHELAN

January 6, 2022 1:17 PM

As Jonathan Adler noted, just before Christmas, President Biden announced two rather surprising federal appellate nominees—Nancy Gbana Abudu to the Eleventh Circuit and J. Michelle Childs to the D.C. Circuit. I’m going to pass over for now commenting on the merits of either nominee. (The Abudu pick has, as Jonathan anticipated, already generated controversy.) Instead, I’m going to use the occasion to elaborate on my post, three days before Biden’s announcement, in which I observed that, by Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success.

In particular, I would like to highlight what strikes me as the most extraordinary aspect of Biden’s judicial picks so far: with the Abudu and Childs nominations, seven of Biden’s eighteen federal appellate nominees—39%—have been black women. The other five include the first four appellate judges that Biden commissioned: Ketanji Brown Jackson (D.C. Circuit), Candace Jackson-Akiwumi (Seventh Circuit), Tiffany P. Cunningham (Federal Circuit), and Eunice Lee (Second Circuit). The fifth, Holly Thomas (Ninth Circuit), will likely be confirmed this week or next.

Some observations:

1. According to the American Bar Association’s 2021 Profile of the Legal Profession, 4.7% of American lawyers are black and 37% are female. On the ballpark assumption that the male-female divide among black lawyers reflects the broad 63%-37% divide among all lawyers, that would indicate that roughly 1.7% of American lawyers are black females. That would mean that Biden has nominated black women to federal appellate seats at more than 22 times their numbers among American lawyers.

To make the point another way: There are 179 authorized federal appellate judgeships. If black women held appellate judgeships according to their numbers in the legal profession, they would have a total of three seats. (Four black women were appellate judges in active status when Biden became president; two of them have since announced an intention to take senior status.)

2. Over the course of his eight years as president, Barack Obama appointed only two black women to federal appellate seats: O. Rogeriee Thompson (First Circuit) and Bernice B. Donald (Sixth Circuit). (In the last year of his presidency, when Republicans controlled the Senate, Obama unsuccessfully nominated Myra C. Selby to a Seventh Circuit seat—the very seat, as it happens, that ended up being filled by Amy Coney Barrett.)

It’s worth pondering what accounts for the vast discrepancy between Obama and Biden. I see four possible factors. One is that the pool of black female lawyers who have the credentials to be considered plausible candidates for federal appellate seats is probably much larger than it was during Obama’s presidency. This would be a natural consequence of the increase over time in the number of black women who have gone to law school and succeeded in the legal profession.

A second possible factor is that the Biden White House is much more committed to nominating black women than the Obama White House was. Why this would be is unclear. A political explanation might be that Biden needs to prove himself more to the black community than Obama did, but that wouldn’t explain why all but one of Biden’s black appellate nominees have been women. Insofar as personnel is policy, the composition of the White House counsel’s office might be a big factor. (Biden’s White House counsel’s office has lots of women lawyers, including the White House counsel herself, and several black women lawyers; I don’t know offhand how that compares to the Obama White House.)

A third factor might be that the abolition of the filibuster for judicial nominees in December 2013 makes it much easier for black women nominees to be confirmed. But why would it make it easier for them as compared to other nominees? The fact that Obama did not nominate any black women to appellate seats in the immediate wake of the filibuster abolition also cuts against this explanation.

A fourth factor, and one that I think might be easily overlooked, is that the demotion of the home-state senator’s blue-slip privilege on appellate nominations—put into effect by then-Senate Judiciary Committee chairman Chuck Grassley in late 2017—dramatically increases the White House’s power in the nomination process, including over same-party senators. Without the ability to veto a nomination, it’s much harder for a home-state Democratic senator to tell the Biden White House that it has to nominate someone from the senator’s short list. (For this reason, I doubt very much that the Senate will ever demote the blue slip for district-court nominees. To put the point concisely, no senator will ever want to have a political enemy presiding over his corruption trial.)

3. The fact that black women are massively overrepresented among Biden’s appellate picks of course means that other groups haven’t fared as well.

According to the ABA report, Hispanics account for 4.8% of American lawyers, slightly higher than the 4.7% figure for blacks. They also account for a much larger share of the American population. But whereas Biden has nominated eight blacks (the seven women, plus Sixth Circuit nominee Andre Mathis) to appellate seats, he has nominated only three Hispanics. And one of those, Gustavo Gelpí, was to the Puerto Rico seat on the First Circuit, where it would have been difficult not to nominate a Hispanic. So while the Hispanic nomination rate amply exceeds the percentage of Hispanic lawyers, it is much less than half (and, if you exclude Gelpí from the calculus), barely above a quarter of the black nomination rate.

Of course, the big losers (I take some delight in noting) are liberal white males. By the ABA’s numbers, white males account for more than half of American lawyers. Yet only two of Biden’s eighteen appellate nominees (11%) are white males.

(I have previously highlighted law professor John McGinnis’s superb essay on the theoretical and practical problems with the Left’s heavy emphasis on diversity, or representativeness, as a criterion in selecting judges. Nothing in this post should be mistaken as an endorsement of that emphasis.)

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036
202-682-1200
www.EPPC.org

Sign up for email distributions of my blog posts and other writings

on Biden’s extraordinary record on black female appellate nominations

Inbox

Ed Whelan <ewhelan@eppc.org> UnsubscribeJan 6, 2022, 1:00 PM (1 day ago)
to me

From NRO’s Bench Memos:

Biden’s Extraordinary Record on Black Female Appellate Nominations

By ED WHELAN

January 6, 2022 1:17 PM

As Jonathan Adler noted, just before Christmas, President Biden announced two rather surprising federal appellate nominees—Nancy Gbana Abudu to the Eleventh Circuit and J. Michelle Childs to the D.C. Circuit. I’m going to pass over for now commenting on the merits of either nominee. (The Abudu pick has, as Jonathan anticipated, already generated controversy.) Instead, I’m going to use the occasion to elaborate on my post, three days before Biden’s announcement, in which I observed that, by Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success.

In particular, I would like to highlight what strikes me as the most extraordinary aspect of Biden’s judicial picks so far: with the Abudu and Childs nominations, seven of Biden’s eighteen federal appellate nominees—39%—have been black women. The other five include the first four appellate judges that Biden commissioned: Ketanji Brown Jackson (D.C. Circuit), Candace Jackson-Akiwumi (Seventh Circuit), Tiffany P. Cunningham (Federal Circuit), and Eunice Lee (Second Circuit). The fifth, Holly Thomas (Ninth Circuit), will likely be confirmed this week or next.

Some observations:

1. According to the American Bar Association’s 2021 Profile of the Legal Profession, 4.7% of American lawyers are black and 37% are female. On the ballpark assumption that the male-female divide among black lawyers reflects the broad 63%-37% divide among all lawyers, that would indicate that roughly 1.7% of American lawyers are black females. That would mean that Biden has nominated black women to federal appellate seats at more than 22 times their numbers among American lawyers.

To make the point another way: There are 179 authorized federal appellate judgeships. If black women held appellate judgeships according to their numbers in the legal profession, they would have a total of three seats. (Four black women were appellate judges in active status when Biden became president; two of them have since announced an intention to take senior status.)

2. Over the course of his eight years as president, Barack Obama appointed only two black women to federal appellate seats: O. Rogeriee Thompson (First Circuit) and Bernice B. Donald (Sixth Circuit). (In the last year of his presidency, when Republicans controlled the Senate, Obama unsuccessfully nominated Myra C. Selby to a Seventh Circuit seat—the very seat, as it happens, that ended up being filled by Amy Coney Barrett.)

It’s worth pondering what accounts for the vast discrepancy between Obama and Biden. I see four possible factors. One is that the pool of black female lawyers who have the credentials to be considered plausible candidates for federal appellate seats is probably much larger than it was during Obama’s presidency. This would be a natural consequence of the increase over time in the number of black women who have gone to law school and succeeded in the legal profession.

A second possible factor is that the Biden White House is much more committed to nominating black women than the Obama White House was. Why this would be is unclear. A political explanation might be that Biden needs to prove himself more to the black community than Obama did, but that wouldn’t explain why all but one of Biden’s black appellate nominees have been women. Insofar as personnel is policy, the composition of the White House counsel’s office might be a big factor. (Biden’s White House counsel’s office has lots of women lawyers, including the White House counsel herself, and several black women lawyers; I don’t know offhand how that compares to the Obama White House.)

A third factor might be that the abolition of the filibuster for judicial nominees in December 2013 makes it much easier for black women nominees to be confirmed. But why would it make it easier for them as compared to other nominees? The fact that Obama did not nominate any black women to appellate seats in the immediate wake of the filibuster abolition also cuts against this explanation.

A fourth factor, and one that I think might be easily overlooked, is that the demotion of the home-state senator’s blue-slip privilege on appellate nominations—put into effect by then-Senate Judiciary Committee chairman Chuck Grassley in late 2017—dramatically increases the White House’s power in the nomination process, including over same-party senators. Without the ability to veto a nomination, it’s much harder for a home-state Democratic senator to tell the Biden White House that it has to nominate someone from the senator’s short list. (For this reason, I doubt very much that the Senate will ever demote the blue slip for district-court nominees. To put the point concisely, no senator will ever want to have a political enemy presiding over his corruption trial.)

3. The fact that black women are massively overrepresented among Biden’s appellate picks of course means that other groups haven’t fared as well.

According to the ABA report, Hispanics account for 4.8% of American lawyers, slightly higher than the 4.7% figure for blacks. They also account for a much larger share of the American population. But whereas Biden has nominated eight blacks (the seven women, plus Sixth Circuit nominee Andre Mathis) to appellate seats, he has nominated only three Hispanics. And one of those, Gustavo Gelpí, was to the Puerto Rico seat on the First Circuit, where it would have been difficult not to nominate a Hispanic. So while the Hispanic nomination rate amply exceeds the percentage of Hispanic lawyers, it is much less than half (and, if you exclude Gelpí from the calculus), barely above a quarter of the black nomination rate.

Of course, the big losers (I take some delight in noting) are liberal white males. By the ABA’s numbers, white males account for more than half of American lawyers. Yet only two of Biden’s eighteen appellate nominees (11%) are white males.

(I have previously highlighted law professor John McGinnis’s superb essay on the theoretical and practical problems with the Left’s heavy emphasis on diversity, or representativeness, as a criterion in selecting judges. Nothing in this post should be mistaken as an endorsement of that emphasis.)

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036
202-682-1200
www.EPPC.org

Sign up for email distributions of my blog posts and other writings

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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