On Nov. 9, the Senate Judiciary Committee approved the judicial nomination of Brett Talley, a 37-year-old white male attorney with no trial experience. The American Bar Association rated Talley unqualified to serve as a federal judge, one of four of President Trump’s judicial nominees to get that designation. Senators later learned that he had failed to disclose his close ties to the White House.
How unusual is the Talley nomination? What can we glean about Trump’s priorities from his nominees?
Trump has an unusually large number of seats to fill
The Constitution gives the president the power to appoint judges to the federal bench with the Senate’s consent. The federal judiciary includes nearly 900 judgeships. Vacancies on the bench arise when judges retire, die in office or take “senior status” to lighten their load.
Trump has significantly more opportunities to fill the federal bench than did his predecessor. The number of vacancies when Trump took office was double the number of vacancies at the start of President Barack Obama’s first term. Why?
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/10/31/chief-justice-roberts-and-other-judges-have-a-hard-time-with-statistics-thats-a-real-problem/”]Chief Justice Roberts — and other judges — have a hard time with statistics. That’s a problem.[/interstitial_link]
After Republicans regained control of the Senate in the 2014 elections, they refused to confirm almost all of Obama’s judicial nominees. While Obama’s highest-profile nomination was that of Merrick Garland to the Supreme Court, when he left office, 54 of his judicial nominees were pending before the Senate. Perhaps because the task was so obviously futile, Obama had simply failed to nominate any candidates to fill an additional 67 vacancies; 17 of Obama’s earlier candidates had withdrawn or were not renominated. Today, Trump has nominated judges for 25 of those Obama-era vacancies; 10 of those have been confirmed.
Trump’s nominations will make the bench less diverse
Nearly one year into his term, Trump has nominated 59 federal judges, with 14 successfully confirmed. According to the Associated Press, the vast majority are white men — reversing a trend toward a more diverse federal bench that dates back to President Bill Clinton.
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/23/why-not-limit-neil-gorsuch-and-all-supreme-court-justices-to-18-year-terms/”]Why not limit Supreme Court justices to just 18 years on the bench?[/interstitial_link]
Using data from the Alliance for Justice, Federal Judicial Center and the Vetting Room, we looked at Trump’s demographic impact on the judiciary. We did that by comparing the Trump nominees’ self-identified gender and race with Obama’s nominees. In 11 instances, the change in presidency makes no difference. That’s true with four nominations because Trump simply renominated Obama’s appointee. In the other seven, he selected someone of the same gender and race as had Obama: white and male.
Of the remaining 14 nominations, in only two did Trump name someone who brings more diversity than did Obama’s nominee. The reverse is true for all the other cases: Obama’s nominees are significantly more diverse than Trump’s.
What’s more, Obama’s appointments in eight cases would have contributed what law professor Kimberle Crenshaw called “intersectionality.” In those cases, Obama appointed a woman of color, nominations in which two major life experiences are less privileged than the white male standard, putting her in a position to see her social surroundings still more differently than either a white woman or a man of color.
How much does Trump’s election change the federal courts?
To see how much difference the election made for the federal courts, imagine an alternate universe in which the Senate had confirmed all 54 of Obama’s pending nominees. Then compare them to the demographics of Trump’s first 59 nominations. The impact on the diversity of the bench is clear, as is displayed in the bar chart below.
Trump’s bench could diminish public acceptance of the courts
Recent two-term presidents have appointed between 329 and 383 federal judges apiece. Trump starts out with about 100 extra vacancies. If he were to serve two terms with a Republican-majority Senate and judges continue to leave the bench at past rates, Trump could appoint between 450 and 500 judges out of the 870 current positions. Even if Trump were to serve only one term and there were no more vacancies, he is still likely to appoint just over one-tenth of the bench.
Federal judges are appointed for life. Trump is nominating candidates who are relatively young, and therefore many are likely to remain on the bench 30 to 40 years. If he continues to select nominees disproportionately from the same demographic of white, male and conservative, Trump will be effectively freezing the demographic and ideological composition of the bench for decades.
To be sure, judges are more than their demographic identities. However, a great deal of scholarship shows that background characteristics, including demographics, affect judicial decision-making, especially in small-group settings.
Trump’s homogenous nominee cohort could weaken the judicial system’s legitimacy in the public’s eye. If the judiciary does not reflect the people it serves, underrepresented groups are likely to be less trusting of those institutions, research shows. Furthermore, homogeneity in particular careers tends to be self-reinforcing. If you never see a judge that looks like you, then research shows you subconsciously determine that this institution and career path are not open to you.
If Trump wanted to find more diverse judicial candidates who are conservative, he has plenty of opportunity.
Law schools are replete with women and growing numbers of people of color, making the legal bar much more diverse today than it was in 1980.
In almost every state, female attorneys and attorneys of color from a wide variety of ideological backgrounds have the requisite education and experience. That’s even more true if, as the Talley nomination suggests, experience is no longer a barrier to a nomination.
Rorie Spill Solberg is an associate professor of political science at Oregon State University’s School of Public Policy.
Eric N. Waltenburg is a professor at Purdue University in the Department of Political Science.
Together, they are authors of “The Media, the Court, and the Misrepresentation: The New Myth of the Court” (Routledge University Press, 2015).