October 14, 2021
Biden and Senate Best Not Throw Away Our Shot at Getting More Latinos on the Federal Bench
Director of Latinos for a Fair Judiciary
For four years, President Trump’s unabashedly partisan, mostly white, and too often unqualified judicial appointments severely undermined the diversity and integrity of U.S. federal courts, with a damaging impact for years to come on the Latino community
Today, President Biden and the Senate have the opportunity to mitigate this harm by ensuring that judges confirmed to lifetime appointments on our federal courts reflect the demographic reality of our changing nation. Yet, despite notable overall progress on diversity, our leaders are lagging when it comes to appointing Latinos to the bench.
When the 2020 census data was released earlier this year, we learned that while the U.S. white population is shrinking, Latinos are driving U.S. demographic growth. Today, 62.1 million people identify as Latino or Hispanic. Latinos account for 51.1 percent of the country’s growth and make up 18.7 percent of the U.S. population.
In contrast, 2020 research revealed that Latinos only account for 6 percent of judges on federal appeals courts, and 7 percent of judges on district courts. This data is nothing new. Since the founding of our country until the 1960s, white males comprised 99 percent of the federal judiciary. As of 2019, that number had only fallen to about 80 percent.
Many things have dramatically improved in 2021. But not the presence of Latinos on the federal bench.
As of this spring, out of the 20 nominees the Biden administration had put forward, only three were Latinos. Numbers have improved over the past few months, but the handful of Latino nominees still does not come close to capturing the major demographic shift happening in the U.S. or fulfilling the promise President Biden made to “nominate judges who look like America.”
The sting of the Latino community’s absence in judicial nominations was worsened by the administration’s decision to appoint 17 immigration judges who were vetted and selected by Trump’s immigration advisors, along with the continued lack of Latino representation in Department of Justice leadership.
The dangers of perpetuating a judiciary that does not reflect the communities it serves are manifold.
First, our nation desperately needs more Latino judges to help ensure that the legal decisions that shape our society recognize the reality of many of those who live in it. As Justice Oliver Wendell Holmes Jr. once stated: “The life of the law has not been logic; it has been experience.” Judges from underrepresented groups don’t bend the law to fit their experiences; but they do draw from their lived experiences to better apply the law to traditionally overlooked and misunderstood facts and circumstances.
Second, public confidence in the judiciary as a whole is strengthened when, as Justice Elena Kagan explained, the public “look[s] at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.” The small number of diverse — particularly Latino — federal judges will only exacerbate the judiciary’s legitimacy crisis caused by an ideological balance that is out of step with the rest of the country.
Finally, the stakes for building a more diverse judiciary that includes Latino and other diverse perspectives are highest for those most impacted by the outcomes of today’s legal battles. In the coming months and years, federal courts will play a key role in mediating partisan redistricting battles to dilute the power of the Latino vote. They will also decide whether to uphold the up to 33 restrictive voter laws states recently passed that will make it harder for Americans — particularly immigrants and people of color — to cast their ballot. Federal judges will decide whether millions of Latinos will be able to retain DACA protections. And they will determine whether to uphold abortion bans that disproportionately harm Hispanic, Black, and poor women.
Those are just the headline-grabbing cases. On a day-to-day basis, federal courts are the final arbitrators of deportation decisions made by Trump-era immigration judges. They are the sentencers of federal defendants who were prosecuted in a broken and racist criminal justice system.
Absent swift improvements to the judicial appointment process, President Biden and current Senators will end the 117th Congress without making needed progress identifying, nominating and confirming highly qualified Latinos to serve their nation as Federal judges. If Democrats lose the Senate during next year’s midterm elections, judicial confirmations could come to a standstill until 2024 — if not much longer.
It’s not too late to ramp up efforts to appoint more Latinos to the federal bench so that our judiciary at least starts to approximate current demographics. Our nation has a historic opportunity to make a clean break with a centuries-old legal tradition that excludes Latinos and other underrepresented groups in this country. But President Biden and senators are running out of time. They best not throw away our shot.