Analysis: Judicial Nominees and Race

As we mentioned last month, Ben Beach prepared a list of what he considered the Top 10 Stats of 2017.    It’s not quite as bad as Patrice Peck’s 37 Things White People Need to Stop Ruining In 2018, but it has some pretty weak spots.

One of the worst is…

List Item #8: Most of Trump’s judicial nominees are white and male

Our initial reaction is, “Gosh, ya think?!”  But that’s not as productive and educational as our typical content, so…

Why You Care

This is a case of “lies, damned lies, and statistics.”  Purveyors of false truths use out-of-context statistics to slander, discredit or inappropriately take credit.  Once you understand both the context and the source of the numbers, you can correct or defend, as appropriate, arguments backed with statistics.

And, as so often happens, the truth supports both sides of the argument in this case.

Note: For fairness, we’re looking at statistics as of the time of publication of the list.  

Finding the Context

When looking at any such statement, your first goal should be to determine the context.  In this case,

  • Is the statement true?  (Did Trump nominate mostly white males?)
  • Is this different than the past?  (Who did previous Republican Presidents nominate?)
  • What would a race/gender-unbiased search look like?  (What is the ethnic and gender breakdown of the talent pool – meaning the experienced judges?)
  • What was the ethnic/gender breakdown of the actual talent pool?  (Meaning Republican judicial candidates; Obama didn’t appoint Republicans, and Trump isn’t likely to appoint many Democrats.)

Have Trump’s Nominees Been Mostly White Males?

This one is easy.  Yes, they have been.  The supporting article states 91% white, 81% male.  This 81% is slightly more, but similar, to the average of the previous three Republican Presidents: Bush 43:67%, Bush 41: 74%, Reagan 93%. Average: 78%.

Why Mostly White Males?

As reported by the American Bar Association, 65% of attorneys in 2016/17 are male.  As of October 2016, 36% of active judges currently sitting on the thirteen federal courts of appeal are female and 33% of active United States district court judges. This would seem in line with the statistics provided by the ABA of 35% of attorneys being female.

As the percentage of female attorneys rises (in 2000 the enrollment of female to male students in law school had reached 50/50) and tenure in practice and lower courts rises, the judicial nominees should reflect that. As the average age of a graduating law student is 27 and nominees average age is 52; Year 2000 enrollment + 3 years for JD + 25 average tenure prior to nomination = 2028 is when we should see the resulting 50/50 representation more fully.

Even with democratic presidents there was still a skew  toward white judicial appointees.  Though not as closely aligned with the female judge ratio noted above, the US population – July 1, 2017 reported by government census is 77% white/Caucasian.

The United States is predominately white.  And the current active attorneys are predominately male.  This is the pool that the president must choose from.  Of course, there are excellent female and ethnically diverse candidates, but as a percentage, they have not yet reached the tipping point.

Why else might Trump’s nominees be less diverse?

Trump has been very open about selecting based on a legal philosophy.  White House spokesman Hogan Gidley stated,

While past presidents may have chosen to nominate activist judges with a political agenda and a history of legislating from the bench, President Trump has nominated outstanding originalist judges who respect the U.S. Constitution.

And President Trump stated in his 2018 State of the Union address:

Working with the Senate, we are appointing judges who will interpret the Constitution as written, including a great new Supreme Court justice and more circuit court judges than any new administration in the history of our country.

Traditionalists are overwhelmingly Republican and white, while “activist” judges are also very often both Democrat and minority.  Presidents nearly always nominate judges from their own party, presumably due to their aligned political and judicial philosophy.  Obama packed the courts with liberal democrats, to the point where Russell Wheeler of the Brookings Institute pointed out…

Of the 13 appeals courts, nine now have a majority of Democratic appointees, compared with one when Obama took office.

If it’s okay for Obama to pack the courts with his party, it should be okay for Trump to do the same.

Some simple math suggests there are 32 times more potential (based on politics) white Trump-compatible candidates than black ones.

Did Obama Discriminate?

Obama appointed a disproportionately minority set of nominees.  Far more so than the legal talent pool at the time.  To the point where Obama’s selections were considered “anti-white” by some.  Although Obama’s nominees were still 63% non-Hispanic white.  But his bias raises the question…

Should the nominees be the best candidates, or should they be quota-based to achieve a specific mix?

What’s Wrong With the Media View?

The Washington Post makes the point that Trump’s candidates are less diverse than Obama’s.  But as you can see from above, Obama’s candidates were more “diverse” than the actual talent pool.  What the Washington Post didn’t do was compare Trump’s candidates to, e.g., President Bush’s candidates.

Which raises the question…

How do Trump’s Candidates Compare Historically?

Obviously, there were very few minority judges in the 1960s, for example.  But what about more recently?

Helpfully, the Associated Press syndicated an article with such a statistic buried deep inside it:

In his first year, Obama’s confirmed judicial nominees were 31 percent white men. Bush had 67 percent, Bill Clinton 38 percent, George H.W. Bush 74 percent and Reagan 93 percent.

Which does put Trump on the less-diverse side of the spectrum, at 75% white men, but not by an extreme amount compared to other Republicans.

It looks like three things are true:

  1. Democrat Presidents select based on race and “intersectionality” rather than based on experience and technical qualifications more than Republican Presidents do.  Otherwise they would not have so much more diversity than the talent pool. (This is not to suggest that selecting based partially on these criteria is “wrong”; there may be merit in having the Judiciary appear to reflect the population and be more able to empathize with more of it.  But such a view also suggests that no judge is really impartial.)
  2. Judging (swidt) by Obama’s monolithically “Democrat” nominees, it is expected that the President appoint from his own party.  In the last election, 88% of the black vote went to the Democrats.  Trump-supporting candidates are, based on election results, 32 times more likely to be white.  (See above.)
  3. An unbiased mix (which would not help us recover from a biased past, as above) would be dominantly white and male based on the available talent pool of sufficient experience.
  4. Compared to the last 20 years, Trump has selected more white men.  But compared to the last two Republican Presidents, this is much less pronounced.

So, the base charge, that selecting more white men than other categories, is uneducated, but Trump does appear also to be selecting a less diverse pool than has been the case for the last several decades.

 

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