After Justice Stephen G. Breyer announced his retirement, President Biden confirmed that he would, as promised during his campaign, appoint the first Black woman to sit on the Supreme Court. Such an appointment would be in keeping with Biden’s other judicial appointments, which have increased the proportion of Black women among all active federal judges from 4.5 percent directly before Biden took office to 5.7 percent today. That in itself gives him a deeper pool from which to choose the next justice.
And yet, as I discuss in my recent research, women of color continue to endure many obstacles in their legal careers. Black women in particular are more likely to report racial discrimination in law school; are underrepresented in federal judicial clerkships, compared with their proportion in the U.S. population; and continue to face barriers in representation within leadership positions at U.S. law firms.
Biden has put more Black women on the federal bench
Before Biden took office, four Black women were serving as U.S. Courts of Appeal judges — two appointed by President Bill Clinton and two appointed by President Barack Obama. Because the Supreme Court hears so few cases each year, the federal appeals courts are the final stop for the vast majority of cases. Biden has appointed 11 Black women to the federal bench — and nearly half of those have been to the appeals courts (including the elevation of Appeals Judge Ketanji Brown Jackson from the D.C. District Court). That’s a much higher rate of appeals appointments for Black women compared to his Democratic predecessors, according to the Federal Judicial Center data. One of the women named as a possible Supreme Court nominee, South Carolina federal district Judge J. Michelle Childs, is currently a nominee for the D.C. Court of Appeals.
Data: Federal Judicial Center
Supreme Court justices have not always come from the federal judiciary; however, eight of the current nine Supreme Court justices were elevated from the federal circuit courts of appeal, making it the traditional stepping stone to the Supreme Court.
Biden may not select a sitting appeals court judge. However, the very recent appointments of appeals court judges Tiffany Cunningham, Ketanji Brown Jackson, Candace Jackson-Akiwumi, Eunice Lee and Holly Thomas — some of whom received a number of Republican votes — suggest he may have been preparing to use this strategy. However, nominating Childs from the South Carolina federal district court could garner the votes of both Republican South Carolina U.S. Sens., Lindsey Graham and Tim Scott.
Black women and the legal career pipeline
Charlotte E. Ray is widely regarded as the first female Black lawyer in the United States; in 1872, she received her law degree from Howard University and was admitted to the District of Columbia bar. While far more Black women are lawyers today, disparities in law schools and legal careers cumulatively produce a narrower candidate pool for judicial positions.
According to American Bar Association statistics, in 2020, Black women made up about 5 percent of all students in accredited U.S. law schools. That’s slightly lower than adult Black women’s 2020 proportion of the U.S. population at large, approximately 7.3 percent. And it’s actually a slight decrease from 2015, when 5.5 percent of all law students were Black women.
Black women are less satisfied with law school than other demographic groups, according to a detailed survey of approximately 4,000 law students published in 2020 by the National Association of Law Placement (NALP) and Center for Women in Law. Specifically, Black women were more likely to report having seriously considered leaving law school than other women of color, men of color, White men or White women. While that’s due to a number of factors, female Black law students reported higher rates of unfair treatment due to race and ethnicity than did other demographic groups; fully 69 percent of Black women reported feeling that faculty underestimated their abilities.
Judicial clerkships are often the next stop for law students who want to be judges, offering valuable networking opportunities. But between 2006 and 2016, the percentage of federal clerkships occupied by African American/Black women actually declined, dropping from 3.1 percent for the 2006 graduates to 2.2 percent for 2016 graduates. And more recent figures from 2019 show that disparities remain in terms of the percentage (4.1 percent) of federal clerkships obtained by Black/African American law school graduates regardless of gender.
Of the 11 Black women Biden appointed to federal judgeships, eight had experience in private practice, similar to the experience profile of many judicial nominees. So how are Black women faring in law firms? Overall, U.S. law firms have increased the proportions of female Black lawyers on staff over the past 12 years. But their numbers thin at the top levels of these organizations, with Black women holding less than 1 percent of all partnerships at U.S. law firms each year since 2009. Lawyers of color also have disproportionate rates of attrition from law firms, as measured by someone who has left a particular firm (which could include shifting to a different legal career).
Further, women of color attorneys report lower career satisfaction. In addition, research by attorneys Destiny Peery, Paulette Brown, and Eileen Letts find that Black women often endure unique family pressures and encounter biases, stereotypes, and disparate treatment — all of which can help push them to leave the legal profession, contributing to what social scientists often call the leaky pipeline.
Legislative caucuses can be especially effective when they listen to their Black women members
A diverse federal judiciary is not guaranteed
Legal organizations, professional associations, and law students themselves have nevertheless cultivated a more diverse legal profession — offering Biden a diverse pool of judicial candidates. Social science research suggests that women of color’s identities and life experiences can inform their jurisprudence and decision-making with unique perspectives.
But an increasingly diverse federal bench is far from inevitable. Black women in particular, and people of color in general, face unique barriers to getting ahead in the legal profession. And each president has different priorities — which could cause that diversity to stagnate or even decrease in years to come.
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Gbemende Johnson (@GbemendeJ) is associate professor of government at Hamilton College.