Racial and Ethnic Diversity in Judicial Nominations

• In Event: Race, Judging, and the Courts

Abstract

Having federal courts that reflect the population demographically is a critical factor for their democratic legitimacy. With that said, recruiting diverse nominees requires actively building new networks to reshape the pipeline of potential candidates. Because of these costs, the federal judiciary remains substantially unrepresentative despite efforts to diversify the federal bench dating back to the Carter administration. But while these previous efforts fell short of producing a representative bench, they may still help diversification efforts today. In particular, we expect that presidents, concerned with the optics of the bench returning to all-White institutions, will "anchor" seats and replace one minority judge with another. Such anchoring behavior will at least ensure that the courts do not become less diverse over time.

Both parties have committed to diversifying the federal bench, but their differing electoral incentives affect their approach to actually doing it. The depth of diversity in the Democratic Party’s recruitment pool, combined with electoral pressure to increase the diversity of the bench, suggests that Democratic presidents will have an easier time diversifying the federal bench and should be less likely to engage in anchoring behavior. Alternatively, given the demographics of their electoral coalition and their focus on identifying conservative judges above all else, Republican presidents will face higher costs to implement diversification and should mostly anchor seats. We therefore expect that the parties will approach diversification of the federal bench differently.

To examine trends in the nomination of diverse federal judges, we use data from all lower court nominations from the start of the Reagan administration in 1981 through the first full Congress of the Biden administration (2022). Each case includes demographic and other basic information on the nominee as well as information on the prior judge’s characteristics, details of the vacancy, the demographic and ideological character of the relevant Senate delegation, and a variety of political context measures. We also gather information on how, how long, and how successfully each nomination proceeded through the Senate.

Using these data, we first examine broad trends in the number of diverse nominations over time. We then investigate both the role that a previous judge’s attributes play in the nomination of a replacement as well as the composition of the Senate delegation, presidential considerations, and court-specific characteristics. Overall, we find that diversity does influence future nominations in ways that suggest prior judges anchor future president’s decisions. Furthermore, we provide the most up-to-date analysis of trends in nominating minority candidates to the lower courts.

Authors

• Jonathan King, West Virginia University

• Ian Ostrander, Michigan State University

• Jessica Schoenherr, University of South Carolina