The Senate has confirmed President Donald Trump’s judicial nominees to the circuit courts at an unprecedented fast pace, giving the Republican more than 1 out of every 5 judges on the powerful appellate branch.
Not one of the 41 judges is black or Hispanic. Five of the judges are Asian American.
Trump has boasted about his success in remaking the federal judiciary during his two and half years in office, installing strong conservatives who will serve for years. While his nominees to the circuit court are predominantly male and white, only a handful are Asian Americans, most notably James Ho to the 5th Circuit, Michael Hun Park to the Second Circuit and Neomi Rao to the D.C. Circuit.
But the absence of any black or Hispanic judicial nominee for the 13 circuit courts has drawn criticism from Democrats and civil rights groups, as the judges will be making decisions affecting all aspects of daily life for millions of Americans, ruling in some 60,000 cases a year.
Among the lower-level district courts, 2% of Trump’s nominees are black, 2% are Hispanic and 4% are Asian Americans.
Trump’s judicial choices for the circuit courts stand in contrast to his predecessors – Democrat and Republican. President Barack Obama made racial and ethnic diversity a top priority, and 27% of his circuit court nominees were black or Hispanic, according to the Congressional Research Service. Fifteen percent of President George W. Bush’s nominees were black or Hispanic.
Trump’s success with court picks is not only a campaign applause line but as an issue certain to energize conservative voters in his bid for a second term in 2020. The appeals courts are immersed in the major issues of the day, including the Trump administration’s policy on family planning funding, the president’s border wall and congressional subpoenas seeking access to Trump’s financial records.
The White House didn’t respond to a request for comment about the lack of diversity in his circuit court nominees.
The Senate on Monday was poised to move ahead on Trump’s 42nd nominee, the choice of Daniel Bress, a former clerk to the late Supreme Court justice Antonin Scalia, to the 9th Circuit. If confirmed, Bress would be Trump’s seventh pick for the 29-member California-based court.
The state’s two Democratic senators, Kamala Harris and Dianne Feinstein, oppose the nominee, arguing the that Washington lawyer has not resided or worked in California recently.
“As senators we have a right to demand that an individual being nominated to represent our state on the Circuit Court actually be a practicing lawyer based in our state,” Feinstein, the ranking Democrat on the Judiciary Committee, said last month.
While some Republican senators talked about the need for diversity, many argued that the most qualified candidates should ultimately be appointed. When asked about concerns regarding racial diversity, Sen. Josh Hawley, R-Mo., another Judiciary Committee member, said of Trump, “I think he’s nominated really excellent judges, and I hope he keeps it up.”
Sen. John Cornyn, R-Texas, cited a recent Trump nominee to a Texas district court, Jason Pulliam, who is African American. He added that Trump still has more time and many more judicial appointments to make.
Senate Majority Leader Mitch McConnell, R-Ky., has been determined in ensuring Trump’s nominees are confirmed, with Republicans changing long-standing Senate rules and practices to speed the process over the objections of Democrats. The GOP limited debate time, undercutting the opposition party’s efforts to drag out the discussion, and scrapped the agreement that both home-state senators sign off on a nominee before moving ahead.
Trump has secured Senate confirmation of 123 judges in 2 1/2 years – two associates on the Supreme Court, 41 on circuit courts and 80 on district courts.
Democrats said they had proposed people of color for potential judgeships but that the current Republican administration had cut them out of the process. As the minority party, Democrats lack the votes to stop Trump nominees unless enough GOP senators also oppose them.
“[Trump’s] record on women and people of color to all the courts is absolutely abysmal,” said Sen. Richard Blumenthal, D-Conn., a member of the Senate Judiciary Committee. “There is no way the courts of America will look like the American people if he continues to fail in appointing people of color, women, to the courts, courts of appeals and the federal district courts.”
During the 2016 campaign, Trump notably criticized District Judge Gonzalo Curiel, who was targeted by the president while he was the judge hearing a class-action lawsuit against the president’s now-defunct Trump University.
Trump frequently used Curiel’s ethnicity to attack the federal judge’s impartiality. Trump falsely asserted that Curiel was a “Mexican” – Curiel was born in Indiana – and other times said that he was “Hispanic” and “Spanish,” seemingly as an attempt to argue that the judge was biased because of Trump’s views on immigration, including his calls for a border wall.
Kristine Lucius, an executive vice president for the Leadership Conference on Civil and Human Rights, argued that the spat between the federal judge and the then-candidate could have predicted the homogeneity of Trump’s judicial nominees.
“Institutions have to have public confidence that they are reflective of the community and responsive of the community,” said Lucius, who worked for the Senate Judiciary Committee under former chairman Patrick Leahy, D-Vt.
A vacancy on the U.S. Court of Appeals for the 3rd Circuit, with jurisdiction of Delaware, New Jersey, parts of Pennsylvania and the Virgin Islands, underscores the fierce political fights over federal judges and Trump’s ability to shape the court for years.
In March 2016, Obama nominated Rebecca Ross Haywood to serve on the 3rd Circuit. Haywood was an assistant U.S. attorney in the Western District of Pennsylvania, where she had served as chief of the appellate division; was rated unanimously well-qualified by the American Bar Association; and, if confirmed, would have been the first African American woman on the circuit court.
She never got a hearing, as McConnell and the Republican-led Senate were willing to allow the seat to remain vacant in Obama’s final year in office. It was the same approach McConnell adopted for Obama’s Supreme Court nominee Merrick Garland.
Separately, one of Haywood’s home-state senators, Sen. Patrick Toomey, R-Pa., opposed the nominee.
Since taking office, all four of Trump’s nominees to the 3rd Circuit have been white men, including Peter Phipps, a recent Trump district court appointee who earned the backing of the Judiciary Committee last month on a party-line vote.
“Rebecca Ross Haywood, she was every bit as qualified as Peter Phipps . . . maybe more so because she had longer experience in government itself at a very high position,” Sen. Robert Casey Jr., D-Pa., told The Washington Post. “You have a number of potential nominees who are both well-qualified with a deep reservoir of experience and also happen to be diverse, and I think that was the case – certainly was the case – back in the Obama administration, when she was nominated.”
Casey opposes the Phipps nomination, citing his lack of experience and concerns about his judicial philosophy.
In announcing her opposition to Phipps’s nomination, Feinstein said that “some of the most racially diverse cities in the country are in the Third Circuit.”
But the Democratic opposition probably will not change the outcome of the vote in the Senate, where Republicans hold a 53-to-47 advantage.
Sen. Lindsey Graham, R-S.C., chairman of the Judiciary Committee, called Phipps “one of the most impressive nominees for the U.S. Circuit Courts.” Phipps was rated well-qualified by a substantial majority of the ABA.