One hundred and fifty years ago, in Bradwell v. Illinois, the US Supreme Court affirmed an Illinois law barring women from becoming lawyers. According to the court, women were best suited to taking care of their husbands and children. Other states followed suit, also barring women from joining the legal profession. Only later, in Roe v. Wade, did the Supreme Court dispense with that sophistry when it ruled that unwanted motherhood could be economically, physically, and psychologically harmful.
Today, more women now serve on the federal bench than ever before, thanks to President Joseph Biden. Nearly 100 federal judges have been confirmed in the first two years of the Biden presidency—a rate that exceeds that of President Barack Obama at this point in his presidency (62), and even higher than the dogged pace pushed by Donald Trump (85) in the first half of his presidency.
Recent media coverage has focused on the fact that three-quarters of Biden’s confirmed nominees are women and that, unlike his predecessors, he has nominated more Black women to the federal appellate bench than any prior president, as well as elevating the first Black woman—Justice Ketanji Brown Jackson—to the nation’s highest court. However, the Supreme Court’s far-right majority has already overturned Roe v. Wade as well as Planned Parenthood v. Casey, and the dismantling of other legal protections may soon follow. At a time in which the United States is seen as a democracy in decline, and Americans hold little confidence in the Supreme Court, is there a silver lining to be found in Biden’s judicial appointments? I think there is. Further, there are several key takeaways absent from most media coverage about Biden’s appointments to the federal courts that reflect hard realities about sex and race bias and inequality in the United States.
First, there wouldn’t even be a story about Biden’s appointments if not for the fact of low representation of women in the judiciary—a compounding failure of past presidents to nominate more women to the federal bench. As Justice Jackson’s appointment proved, this is not a pipeline problem. In fact, at the time of her nomination, many speculated that the selected candidate might be Associate Justice Leondra Kruger, who serves on the California Supreme Court; Judge J. Michelle Childs, who now serves on the United States Court of Appeals for the District of Columbia Circuit; or Associate Justice Anita Earls, who serves on the North Carolina Supreme Court. By the time Jackson’s name was put forth, a list of smart, highly credentialed Black women emerged.
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It would be a mistake to ignore the fact that Republican presidents are far less likely to nominate women to the federal judiciary than their Democratic counterparts. Data from the Pew Research Center shows that Republicans consistently do a lousy job of elevating women to the federal judiciary. President Obama appointed nearly double the number of women judges than President George W. Bush. President Bill Clinton appointed nearly three times the number of women than George H.W. Bush to the federal judiciary. And President Jimmy Carter had double the “share of all judges appointed” who were women compared to his successor, Ronald Reagan. Indeed, only 8 percent of all Reagan judicial nominees were women.
To place this in context, prior to Biden’s nomination of Justice Jackson, no Black woman had ever been nominated to serve on the United States Supreme Court, let alone confirmed, in its more than 230-year history. And of the 28 circuit court judges tapped by Biden, 11 are Black women, “more than those installed under all previous presidents combined,” as the Associated Press reported.
Yet the focus on Biden’s accomplishments in elevating women obscures serious problems when Republican presidents are in office. Their nominees are overwhelmingly white and male, thus revealing a second important takeaway, if we chart the past 40 years. Ninety-four percent of Reagan’s appointees were white; his successor, George H.W. Bush, made judicial appointments that were 90 percent white. And even though George W. Bush and Donald Trump nominated a higher percentage of people of color than their predecessors, it was nothing to cheer about. George W. Bush left two terms in office with 82 percent of all his judicial appointees’ being white and Donald Trump close behind with 84 percent of all his judicial appointments’ being white.
Clearly, raw numbers alone tell us only so much. After all, Ronald Reagan did appoint Sandra Day O’Connor, the first woman to sit on the United States Supreme Court, and George H.W. Bush followed with the appointment of Clarence Thomas to fill the vacancy left by Justice Thurgood Marshall’s retirement.
But a third matter worth recognizing in Biden’s appointments is that the nominees represent a broader diversity of professions—more in common with the jobs that touch the lives of most Americans. Again, this would be a nonissue or less of one if the American public could see part of their background, education, or geographic location reflected in the justices on the Supreme Court. All but one justice—Amy Coney Barrett—graduated from either Harvard or Yale law schools and two—Gorsuch and Kavanaugh—attended the same elite, private day school.
Diversity of background matters. The court often hears cases dealing with the death penalty and criminal justice. However, Justice Jackson is the only judge who served as a public defender, representing indigent clients who cannot afford counsel in criminal cases. The importance of that experience is twofold, as the United States incarcerates more people than any other nation in the world. In Justice Jackson’s case, she is also the rare Supreme Court Justice to have served on every level of the federal judiciary, including a district court, which has a higher volume of cases that broadly touch on all manner of legal disputes.
It’s also worth pointing out that as much as diversity of background and gender matters, federal court decisions over the past decade prove that diversity isn’t enough to ensure constitutional rights are protected and not rolled back, with a conservative supermajority on the court. Women judges may vote to uphold sex-discriminatory laws. Thus, more women on the bench will not be an absolute shield to sex discrimination. Still, the Supreme Court’s dismantling of reproductive freedom has highlighted how the male-dominated federal courts have historically harmed women’s interests, in particular, in a myriad of ways.
In a series of alarming 5-4 decisions related to women’s economic, health, and employment interests, the Supreme Court sided against women, with no women represented in the majority. The court struck down a California law enacted to promote women’s health and protect them from fraud and deception at crisis pregnancy centers. The Supreme Court limited women’s rights to file suit under Title VII of the Civil Rights Act for gender pay claims (Ledbetter v. Goodyear Tire & Rubber Co); found “that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law…they judge incompatible with their sincerely held religious beliefs” in a case denying female employees contraceptive coverage (Burwell v. Hobby Lobby); and denied women plaintiffs class action status to sue Wal-Mart based on gender discrimination (Wal-Mart v. Dukes), to name a few recent cases.
For many reasons, President Biden’s record-setting appointments of more women to the federal bench is important. In a well-functioning democracy, representation matters not only in the legislative and executive branches of government but also in the courts. Given the scope and scale of critical issues before our courts, cultivating a credible judiciary and protecting the rule of law is as important today as it’s ever been.
