Biden quest for judicial diversity goes beyond race, gender

President Joe Biden spent a recent flight aboard Air Force One reminiscing with lawmakers and aides about his start as a young lawyer in Delaware working as a public defender in the late 1960s.

The flight from New York to Washington was short, and there wasn’t much time to explore the president’s brief time in the job during the civil rights era. But as Biden considers his first Supreme Court nominee, this lesser-known period in his biography could offer insight into the personal experience he brings to the decision. The account was relayed by a person familiar with the trip who insisted on anonymity to discuss it.

Biden has already made history by nominating more public defenders, civil rights attorneys and nonprofit lawyers to the federal bench during his first year in office than any other president, increasing not just the racial and gender diversity of the federal judiciary but also the range of professional expertise. And it’s possible that theme will continue as he looks to make more history by nominating the first Black woman to the nation’s highest court.

While three of the current justices have experience as prosecutors, none was a criminal defense attorney. The last justice with serious experience in defense was Thurgood Marshall, a civil rights attorney nominated about 55 years ago. He was the first Black person on the court and retired in 1991.

Some of the women on Biden’s list of potential nominees have deep public defense or civil rights backgrounds: Ketanji Brown Jackson, 51, for example, worked as a public defender and served on the U.S. Sentencing Commission before she was nominated to the bench by President Barack Obama. Eunice Lee, 51, whom Biden named to the U.S. Court of Appeals for the 2nd Circuit in August, is the first former federal defender to serve on that court.

Biden’s judicial appointments thus far make clear his interest in professional diversity.

Nearly 30% of Biden’s nominees to the federal bench have been public defenders — including 7^th Circuit Court of Appeals Judge Candace Jackson-Akiwumi — 24% have been civil rights lawyers and 8% labor attorneys. By the end of his first year, Biden had won confirmation of 40 judges, the most since President Ronald Reagan. Of those, 80% are women and 53% are people of color, according to the White House.

“It’s so important to have a diversity of perspectives and having the judiciary really reflect the diversity of lived experiences and perspectives of the folks who are coming before them,” said Lisa Barrett, director of policy at the NAACP Legal Defense & Educational Fund.

The Supreme Court hears only a fraction of federal cases filed each year. Federal judges are hearing most of the cases, with roughly 400,000 cases filed in federal trial courts a year. The high court hears only about 150 of the more than 7,000 cases it is asked to review annually.

Most of the judges appointed to the federal bench have worked as prosecutors, corporate attorneys or both. A survey three years ago found more than 73% of sitting federal judges were men, and more than 80% were white, according to the Center for American Progress.

A diversity of professional expertise makes for a fairer and more just bench, advocates say. Judges draw on their personal histories to help them weigh arguments and decide cases, and they also learn from each other. Public defenders often represent the indigent and the marginalized, those who often can’t afford their own attorneys.

“They represent the 80% percent of people in the criminal legal system too low-income to afford a lawyer,” said Emily Galvin-Almanza, a former public defender who founded the nonprofit Partners for Justice. “So when you put a public defender on the bench, you’re putting a person on who listens with a very different ear. You have a person on the bench with an experience of the realities of very, very disempowered people.”

Biden’s brief time as a public defender isn’t widely discussed, and it isn’t listed in his official biography on the White House website. He’s more prone to talk about his 36 years as a senator and his time as head of the Judiciary Committee, where he oversaw six Supreme Court nominations.

But the president has spoken at times about his brief time as a public defender before he became a U.S. senator at the age of 29. It’s informed some of his decisions in office, like directing federal grant money for public defense and expanding other federal efforts on public defense.

“Civil rights, the Vietnam War and President Nixon’s rampant abuse of power were the reasons I entered public life to begin with,” Biden said in a 2019 speech in South Carolina during the presidential campaign. “That’s why I had chosen at that time to leave a prestigious law firm that I had been hired by and become a public defender — because those people who needed the most help couldn’t afford to be defended in those days.”

In a 2007 memoir, he called the job “God’s work.”

The president promised during his campaign for president that he’d nominate a Black woman to the bench, and he spent his first year in office broadening his potential applicant pool through judicial appointments. Most Supreme Court justices have come from federal appeals courts, but it’s not a requirement. Among the current justices, only Justice Elena Kagan wasn’t a federal appeals court judge before joining.

Federal judges are often chosen from state courts, which also lack in diversity. But Biden’s very public push to diversify federal judges could have an impact on how judges in the states look, too.

“Neither state courts nor federal courts reflect the diversity of the communities they serve, or the diversity of the legal profession. Courts across the country are falling short,” said Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice at NYU School of Law. “But we’re hoping that is slowly changing.”

Biden has promised a rigorous selection process for his Supreme Court nominee. His team, led by former Democratic Sen. Doug Jones, is reviewing past writings, public remarks and decisions, learning the life stories of the candidates and interviewing them and people who know them. Background checks will be updated and candidates may be asked about their health. After all, it’s a lifetime appointment.

The goal is to provide the president with the utmost confidence in the eventual pick’s judicial philosophy, fitness for the court and preparation for the high-stakes confirmation fight. Interviewing potential candidates comes later, but Biden has already spoken to some of the women who may be under consideration back when they were being appointed to other courts.

Biden will also continue to seek the advice of lawmakers. He was to host Senate Judiciary Committee Democrats on Thursday, a White House official said.