Biden Accentuates Diversity in Selecting Nominees to Federal Bench

Shareholder Advocate, Fall 2021

October 21, 2021

A central campaign promise of then-candidate Joseph Biden was to appoint U.S. Supreme Court justices and federal judges who “look like America, are committed to the rule of law, understand the importance of individual civil rights and civil liberties in a democratic society, and respect foundational precedents like Brown v. Board of Education and Roe v. Wade.” When President Biden took office, there were 46 vacancies on the federal bench. In the weeks following his inauguration, an additional 28 federal judges created vacancies by announcing they were retiring or transitioning to “senior” status. Some of these judges have played a significant role in financial sector litigation, including Second Circuit judges Robert Katzmann and Denny Chin (who presided over the prosecution of Bernie Madoff). In the first nine months of his term, President Biden has worked quickly to advance judicial nominations in federal courts across the United States. As of October 1, 2021, President Biden had nominated 51 individuals for the federal bench and 14 of those nominees have been confirmed— the highest confirmation rate for that time period since the Nixon era, according to the Brookings Institution. President Biden appears to have focused his early nominations and confirmations on states with two Democratic Senators, presumably to ensure nominees would have unanimous support from their home state and streamline the confirmation process.

Consistent with his campaign promise, President Biden has nominated highly qualified candidates who are also markedly more diverse in terms of both personal and professional background than his predecessors, including:

  • Hon. Ketanji Brown Jackson, who previously served as a judge on the U.S. District Court for the District of Columbia and before that as a federal public defender. Judge Jackson was confirmed to the U.S. Court of Appeals for the District of Columbia. Judge Jackson is also the first Black woman to be confirmed to the federal appellate bench in nearly 10 years.
  • Hon. Lydia Kay Griggsby, who previously served as the Chief Counsel for Privacy and Information Policy for the Senate Judiciary Committee. Judge Griggsby was confirmed to the U.S. District Court for the District of Maryland and is one of few Black women district judges.
  • Dale Ho, a longtime voting rights lawyer who worked for the American Civil Liberties Union and previously for the NAACP Legal Defense and Educational Fund. Mr. Ho was nominated to the U.S. District Court for the Southern District of New York. If confirmed, he would be the only active Asian male judge in that court.
  • Sarah Elisabeth Geraghty, who is a civil rights advocate now with the Southern Center for Human Rights and previously with the Office of the Appellate Defender. Ms. Geraghty was nominated to the U.S. District Court for the Northern District of Georgia. If confirmed, she will be the first former federal defender to become a district court judge in Georgia.

As U.S. District Judge Carlton Reeves of the Southern District of Mississippi advised during a March congressional hearing on judicial diversity, “[w]hen our courts are diverse, they better understand the complexity of the American experience embedded in every case that comes before them. When our courts are diverse, they reinforce public trust in our system of government. America contains multitudes, so must this court.” President Biden’s focus on extraordinary nominees who also “look like America” will strengthen the judiciary for years to come.

While the addition of judges with experience in and understanding of criminal defense and civil rights is vital, President Biden has missed an opportunity to date to nominate judges who would enhance the judiciary’s understanding of economic justice and corporate fraud. With very few exceptions, President Biden’s choices have not possessed backgrounds in securities, antitrust, consumer protection, or labor law. Ensuring competence in these complex areas of law that directly impact American investors, consumers, and workers is a worthy goal and should be a focus of President Biden’s future judicial nominations.