Tuesday, August 13, 2019
Rutgers Law Professor Stacy Hawkins writes how President Donald Trump is quietly whitewashing the federal judiciary with dangerous consequences for the justice system and democracy. Below is the introduction to her article, Trump's Dangerous Judicial Legacy, 67 UCLA L. Rev. Disc. (2019)
As much attention has been focused on scrutinizing President Trump’s two appointments to the United States Supreme Court, a more pervasive and insidious effort by President Trump to remake the federal judiciary has gone relatively unchallenged. Our collective obsession with the nation’s highest court and its shifting ideological balance since the retirement of longtime moderate Justice Anthony Kennedy, while important, has allowed a less notable but no less important shift to occur in the judiciary as a result of Trump’s record-setting pace of appointments to the lower federal courts. Aside from their obvious politics, most of Trump’s judicial appointees share something else in common—they are almost all white and largely male. This is no mere coincidence. It is a seemingly deliberate attempt to undo decades of diversity progress on the federal judiciary made over the course of multiple, successive presidential administrations across both political parties.
For all the handwringing over President Trump’s two appointees to the Supreme Court, the president has quietly appointed more judges to the federal appeals courts in his first two years in office than any other president in history. Given that so few cases will ever be heard by the Supreme Court, these courts often represent the highest level of appeal in our federal judicial system. In addition to being prolific, there is a striking pattern to Trump’s judicial appointees. He has broken with a decades-long presidential tradition of making the judiciary more demographically diverse than one’s political predecessor. Instead, Trump has appointed fewer minority judges to the federal bench than any president since Ronald Reagan and fewer women judges than any president since George H.W. Bush. For the first time in nearly three decades, the federal bench has actually become appreciably less diverse, even as the nation has continued to experience rapid growth in its demographic diversity. The truculence about America’s growing cultural pluralism that is reflected in Trump’s federal judicial appointments is resonant with a central theme of his now (in)famous campaign promise. Notwithstanding the facile appeal to patriotism, there is considerable proof that what Trump really aims to do is not “Make America Great Again” so much as “Make America White Again.” At least insofar as his efforts to remake the judiciary are concerned, this “whitewashing” has grave consequences for the judiciary itself and arguably for our democracy more broadly.
Trump’s record-setting pace of federal judicial appointments have shifted the demography of the judiciary from one that was becoming increasingly more representative of the people it serves to one that is actively being made less representative of the American people. This Article first highlights this demographic shift in quantifiable terms. It then situates this judicial trend as a part of Trump’s larger political agenda and explores its consequences for the judiciary and for our ideals of democracy more broadly. (internal citations omitted)