As President Donald Trump moves aggressively to advance a legal agenda with racial dimensions, he is simultaneously setting records for the percentage of white people nominated for lifetime appointments to the federal courts.
Of the nearly 60 individuals Trump has nominated to preside over the US justice system, only one is black. Only one is Hispanic. Trump’s record, according to a CNN comparative analysis of data from the Federal Judicial Center and the US Senate, reflects a lack of racial and ethnic diversity unseen for decades.
It is difficult to consider Trump’s judicial choices, which this week are continuing their steady pace through the Senate confirmation process, without the backdrop of his racially inflected comments and actions since becoming President. A case in point on Monday: His derision of Sen. Elizabeth Warren as “Pocahontas” during a White House ceremony for Navajo World War II heroes.
The portrait of Trump’s judges emerges as race roils America, evident in the controversy sparked by the latest “Pocahontas” jab, the aftermath of the Charlottesville white supremacist march in August and ongoing protests by NFL players inspired by quarterback Colin Kaepernick.
Beyond Trump’s rhetoric, his legal agenda includes the targeting of Harvard’s affirmative action policies, withholding of federal funds from “sanctuary cities” that decline to detain and hand over certain undocumented immigrants for deportation and a travel ban focused on Muslim-majority countries. The latter two initiatives have been blocked, in full or in part, by federal judges.
It is startling that the President nominated only one African-American to a lifetime seat on the federal bench. Even in that situation, a leading Democratic senator has suggested the candidate was slotted for a less desirable post.
That lone black nominee, Terry Moorer, currently a magistrate judge in Montgomery, Alabama, had sought a US district judgeship in that state capital city where he sits. The Trump administration had announced in May that Moorer — a federal prosecutor from 1990 to 2007, when he was appointed magistrate — would be nominated for a Middle District of Alabama judgeship.
But in September, Moorer was officially nominated for Alabama’s Southern District, in Mobile, making way for Brett Talley, one of Trump’s more controversial choices, to be offered the seat in the capital with an arguably more significant caseload, including voter redistricting challenges.
Talley received a “not qualified” rating from the American Bar Association. Some Democratic senators have also criticized Talley for failing to disclose on a Senate questionnaire that his wife is chief of staff to White House Counsel Don McGahn, who takes the lead in judicial selection.
Overall, Trump judicial candidates so far are whiter and more consistently male than past presidents’ choices.
Only 8% of Trump’s nominees are not white to this point, the lowest share for a president in three decades. It’s less than a quarter of Barack Obama’s 36% nonwhite appointees, and less than the 22% of George W. Bush’s, 24% of Bill Clinton’s and 10% of George H.W. Bush’s. Only 7% of Ronald Reagan’s appointees were nonwhite. Trump has nominated fewer blacks and Hispanics than Reagan but he has named three Asian-Americans, which raises his percentage of racial minorities to slightly higher than Reagan’s record.
Nineteen percent of Trump’s nominees are women so far, less than half of Obama’s 42% women appointees. It’s also less than the 22% for George W. Bush and 28% for Clinton. George H.W. Bush’s appointees were 19% women, and Reagan appointees 8%.
Trump’s choices have drawn more “not qualified” ratings from the American Bar Association than appointees of past presidents. A full 8% of Trump’s candidates have been rated not-qualified, compared with either 1% or 0% going back to the early 1960s.
Deputy press secretary Hogan Gidley declined to answer questions directly about the racial makeup of Trump’s nominees for the bench and said generally, “The President has delivered on his promise to nominate outstanding judges, starting with Justice (Neil) Gorsuch and Judge Amul Thapar.” Gorsuch sits on the Supreme Court. Thapar was confirmed to the Cincinnati-based US Court of Appeals for the 6th Circuit.
This analysis compares Trump’s nominees at this point to past presidents’ seated judges. Trump’s choices are likely to continue sailing through the GOP-controlled Senate, where previous filibuster rules, requiring 60 votes, have been lifted. The Senate on Tuesday confirmed Gregory Katsas, a Trump administration lawyer, by a 50-48 vote to a seat on the prominent US Court of Appeals for the District of Columbia Circuit; past presidents’ nominees to this court, often regarded as second in power only to the Supreme Court, have been stalled or fully blocked in partisan battles.
Trump has been moving fast to fill openings on the three-tiered federal bench, pleasing a conservative base that understands that such appointments can be a president’s most enduring legacy. Federal judges decide major social issues from abortion rights to religious freedom to the death penalty. They also handle business, consumer and environmental dilemmas.
The nine seats on the Supreme Court capture most attention, but the 179 positions on the federal appeals courts can be nearly as consequential because most cases never make it up to the high court. For these important seats, Trump has sought tested conservative lawyers, professors and lower court judges, aided in the vetting by the right-wing Federalist Society.
Democrats have complained about the lack of diversity, level of qualifications and conservative ideology among Trump’s choices. But Democratic senators’ minority position has prevented them from throwing up any real hurdles so far.
Sen. Dianne Feinstein of California, the senior Democrat on the Senate Judiciary Committee, has been among those scrutinizing the lack of diversity and questioning why Talley ended up with the slot to which Moorer had appeared headed.
In response to written queries from Feinstein, Moorer said he had preferred the Montgomery location yet was still honored to be nominated to the Mobile district. He said the caseloads in the two regions were not “dramatically different” but noted that the court in the state capital would hear redistricting challenges and public corruption disputes, while the Mobile-based southern district, in a port city, would hear admiralty and maritime cases.
Moorer did not respond to a query about the situation from CNN. White House deputy press secretary Gidley declined to answer a question related to the Moorer nomination but criticized the ABA rankings, calling the longstanding organization “politically motivated.”
White House press secretary Sarah Sanders told The New York Times, which first reported that Talley had omitted the information regarding his wife’s work in the White House from his Senate questionnaire, that Talley was “more than qualified to serve in the federal judiciary.” He works in the Department of Justice’s Office of Legal Policy.
The ABA has provided what it regards as nonpartisan evaluations of judicial candidates since the 1950s. For most presidents, the reviews have been conducted pre-nomination. (The Trump administration notified the ABA earlier this year that it would not be following that practice.)
Feinstein said the Alabama situation was “illustrative of Trump’s priorities.”
“Despite decades of experience as a US attorney and magistrate judge, … Judge Moorer was inexplicably moved to the Southern District to make way for Brett Talley,” Feinstein told CNN. “Talley, by comparison, is one of the most unqualified nominees I’ve ever seen. It was a bad choice for Alabama.”
Over the remaining three years of his term, Trump will have scores of additional judicial seats to fill. Feinstein deemed it “inexcusable” that so far his choices tilted so heavily toward white people.
Said Feinstein, “Federal judges should reflect the diversity of our country and the communities they serve.”
