L4GG applauds, with reservation, the Biden Administration for nominating a diverse set of candidates for the federal judiciary.  Almost every demographic group in the nation is underrepresented in the federal courts, and the Trump Administration widened that gap by disproportionately nominating white men to the judiciary.  This led, among other things, to the re-segregation of courts like the Seventh Circuit Court of Appeals.  If confirmed, the Biden Administration’s nominees would do much to alleviate historic underrepresentation on the courts, by prioritizing the nominations of women, African Americans, and Asian Americans.  

However, there are two important demographic groups that the Biden Administration has not yet committed to ensuring are equally represented on the federal bench—Native and Latine Americans.  To achieve equity on the courts, President Biden must commit to nominating attorneys from these communities as well, in addition to continuing to nominate diverse candidates from every other underrepresented community.

Native Americans

As Americans, we live on the stolen land of Native Americans. In our nation’s history we have had close to 4000 federal judges, but only 4 of these judges have been Native American.  Today, there are 870 federal judges, but only 2 of them are Native American.  There has never been a Native American judge on an appellate court, or even a district court judge in states with high Native American populations like Alaska, New Mexico, South Dakota, or Montana.  If we as a nation wish to try to repair centuries of damage our country has committed against the Native American community, we must, among other things, ensure that they are an active member of the judicial system that oversees the laws enforced on their land.  President Biden must commit to nominating Native Americans, including to nominate the first ever Native American judge on a federal appellate court.

Latine Americans

The Biden Administration did nominate 1 Latina out of 11 nominees, but that led to “vociferous and vocal dissent” from the nation’s two largest Latino legal civil rights organizations—MALDEF and LatinoJustice/PRLDEF.  Full disclosure, I am a Latine civil rights attorney myself and worked on judicial nominations at MALDEF for close to a decade, so know this issue better than most—I share their frustration, but I think it requires further explanation for those without my background.  

Latine Americans are 19% of the US population and growing, but we are 9% of the judiciary.  The previous president went out of his way to say that Latines were not capable of being judges.  Several years into the Trump Administration, despite nominating 42 circuit court judges, he had not nominated a single Latine, African, or Indigenous American judge. The Latine community decided to come together to force the issue and succeeded in getting one Latina onto the 11th Circuit.  By the end of the Trump Administration, out of 53 Circuit Court nominations, one was Latine, and zero were African or Indigenous Americans.  This is why over-representation in Biden’s nominations is so crucial for each of these communities.  

President Biden must also commit nominating Latines to the judiciary, commensurate with the population overall.  This should include nominations to appellate courts and the DC Circuit, which has never had a Latine judge.

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An opening slate of judicial nominations is a message, and it did convey an important and laudable message—the Biden Administration wants to nominate diverse attorneys to the federal bench.  We look forward to the Biden Administration continuing that commitment to ensure all underrepresented communities are represented on the bench, and to ensure that those nominees have a dedicated commitment to pursuing equal justice for all. 

Adam Fernandez
Vice President of Policy and Strategic Engagement
Lawyers for Good Government (L4GG) and the L4GG Foundation