What Biden’s Appointees Can Tell Us About His Supreme Court Nominee

It’s Supreme Court nomination season again. Last week, Justice Stephen Breyer announced that he will retire from the court at the end of the term, and President Biden has said he will name his nominee by the end of February. In keeping with a campaign promise, Biden is widely expected to nominate a Black woman, too, with possible replacements including Ketanji Brown Jackson, a judge on the D.C. Circuit Court of Appeals; Leondra Kruger, a justice on the California Supreme Court; and J. Michelle Childs, a district court judge in South Carolina — among others.

Appointing the first Black woman to the Supreme Court would make history, but this hasn’t stopped some from criticizing Biden for limiting his search to candidates of one specific gender and race. Underlying those complaints is the assumption that a Black woman would be less qualified than other potential nominees, but our analysis shows just how flawed that assumption is. We looked at data from the Federal Judicial Center and found that while Biden is indeed diversifying the courts — in just one year, he’s appointed 24 percent of the Black women on the federal bench — it’s simply not true that he’s weighing diversity more highly than the qualifications usually used to evaluate judges. In fact, his lower-court appointees are arguably more highly qualified on those metrics than the judges selected by previous presidents, and that’s particularly true of the Black women he’s named.

This past December, when we assessed how well Biden was delivering on his promise of expanding the diversity of the courts, we found that the vast majority of his appointees were people of color. Almost two months later, an additional 14 judges have been confirmed — bringing the number of Biden appointees to 42 — and Biden’s judicial appointees are still far more diverse than previous presidents’ appointees.

In particular, Biden has been more focused than his predecessors in appointing Black women, who are highly underrepresented in the federal judiciary. So far, more than one-quarter (26 percent) of Biden’s appointees are Black women, including five Black women who were nominated to serve on appeals courts.

To put it another way, Black women comprise only 6 percent of active federal judges — and 24 percent were appointed by Biden in the year since he took office. Perhaps even more strikingly, five of the nine Black women who are currently serving as appeals court judges were appointed by Biden.

Biden is diversifying the courts in other ways, too. According to our analysis, many of Biden’s appointees have professional backgrounds that aren’t typical for federal judges. In the past, a common pathway for judges was to work as a prosecutor: About 40 percent of Obama’s appointees and Trump’s appointees had worked as a prosecutor at one point or another. Biden’s appointees are different, though. They’re much less likely to have worked in prosecution — and more more likely to have worked in advocacy and public defense.

Biden might be trying to avoid nominating additional white, male former prosecutors to the bench — but he’s not avoiding other traditional qualifications for judges. In fact, when it comes to education, Biden’s appointees are even more highly credentialed than other presidents’ appointees. Nearly 30 percent of Biden appointees attended Ivy League universities for their undergraduate degree, and nearly 60 percent attended a top-ranked law school.

Rather than being less qualified than their white counterparts, Black women are actually more highly credentialed than the average Biden judge. We found that Black women were particularly likely to have attended an elite institution. More than one-third (36 percent) of Black women that Biden named to the courts attended an Ivy League university, and 82 percent attended a top-ranked law school.¹ Black women also stood out among Biden’s appointees on another metric commonly used to assess judges: ratings produced by the American Bar Association for federal judicial nominees. 

Overall, we found that Black judges actually had lower ABA ratings than white judges, but that shouldn’t be interpreted as a sign that they’re less qualified. Political scientists have found that minority judicial nominees tend to receive lower ratings than white nominees, even controlling for education and experience. The vast majority (82 percent) of the Black women nominated by Biden received the ABA’s highest rating when they were first nominated to the federal bench, however. That’s all the more impressive when you factor in that it’s harder for Black judicial nominees to receive a high ABA rating.

This shows that Biden isn’t sacrificing traditional qualifications in pursuit of diversity. If anything, he seems to be prioritizing Black women with highly burnished legal resumes for judicial appointments — perhaps doing so in anticipation of exactly the kinds of complaints about “diversity picks” that we’re already seeing. 

In fact, the potential nominees to replace Breyer are very similar to the federal judges Biden has appointed so far. Like Biden’s other judges, the potential nominees tend to have worked in public defense or public service; Jackson is a former public defender, and Kruger worked in the Obama administration. The potential nominees also have plenty of traditional qualifications, like Ivy League degrees, experience as judges, high ratings from national and state bar associations and Supreme Court clerkships. In fact, Jackson and Kruger are very similar to the Supreme Court’s current justices, most of whom attended Ivy League universities or law schools, clerked for another Supreme Court justice and served as federal judges. 

Of course, there’s a case to be made that having so little educational and professional diversity on the Supreme Court is actually a bad thing. Justice Clarence Thomas, who attended Yale for law school but wrote that he stores the degree in his basement with a 15-cent sticker on the frame, has gone out of his way to hire clerks who didn’t attend Ivy League schools, arguing that the legal profession’s bias toward elite schools doesn’t produce better lawyers. South Carolina Democratic Rep. Jim Clyburn has argued that potential Breyer-replacement nominee Childs, as a southerner with a blue-collar background, would add more value to the court than yet another Ivy-educated lawyer. 

But even so, it’s indisputable that all of Biden’s appointees are highly qualified to serve on the federal courts, as are his potential Supreme Court nominees. Meanwhile, they offer other kinds of diversity that are rare on the current court — and in the federal judiciary as a whole.