Boys on the Bench

All the lame excuses conservatives are making to explain why the president isn’t nominating female judges.

Judges Gregory G. Katsas and Michael B. Brennan on stacks of photos.
Judges Gregory G. Katsas and Michael B. Brennan. Photos by Alex Wong/Getty Images and Tom Williams/CQ Roll Call

Donald Trump has appointed a record-breaking number of judges, the overwhelming majority of which are white men. While the president has had plenty of time to course-correct after getting criticized for this practice, he has not done so; in wave after wave of nominations, he has provided mostly male candidates for the Senate’s approval.

The numbers alone tell a damning story. Trump has nominated 101 people to federal district courts, only 29 of them women. He has made 34 nominations to the federal courts of appeals—a powerful position one level below the Supreme Court—just six of whom are women. Of Trump’s confirmed nominees to Article III courts—those with lifetime appointments—just 23 percent are women. By comparison, 42 percent of Barack Obama’s confirmed Article III nominees were women, including two Supreme Court justices. Both of Trump’s Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, are men.

For many Republicans, Trump’s judicial-nomination machine will remain beyond criticism so long as it continues operating at a rapid clip. (The president has far outpaced Obama and George W. Bush in confirmations thanks to a friendly GOP Senate with no judicial filibuster.) But it’s not just progressives who have criticized Trump’s lack of female nominees—and Trump’s allies have struggled to respond to their critiques without resorting to sexist assumptions and stereotypes.

Ed Whelan, who has played a behind-the-scenes role in Trump’s judicial selections, has asserted that well-qualified conservative attorneys are more likely to be male than female, shrinking the pool from which Trump could draw. There’s some truth to that: According to the American Bar Association, 64 percent of active attorneys are men, and 36 percent are women. In an article for National Review, Whelan further justified the administration’s numbers by noting that the percentages of women Trump has nominated to judgeships are similar to the figures for the Clinton and George W. Bush administrations.

But Bush was rightly criticized for nominating so few women. And Clinton’s numbers—29 percent of his confirmed Article III nominees were female—exceeded Trump’s at a time when fewer women were working in the law. That does not excuse Clinton’s own apparent preference for male nominees. But it’s notable that, even in the 1990s, his numbers exceeded Trump’s. Today, only about one-third of federal judges are women, despite eight years of Obama’s more balanced nominations. Clinton and Bush both should have done better; their bias for male judges does not justify Trump’s.

Whelan sees things differently. He wrote that the relatively small “percentage of women in the hypothetical candidate pool does not speak meaningfully, if at all, to the percentage of highly educated women lawyers.” Many female attorneys, he wrote, may “take time off” from their careers “to raise their kids,” “pursue fields with predictable or flexible hours,” or “face discrimination from legal academia.” These roadblocks and setbacks prevent them from attaining the level of success required for a judicial nomination. Whelan concluded:

From everything I’ve heard over the past 16 months, the White House is vigorously seeking female and minority judicial candidates. The nomination statistics, fairly construed, don’t provide any evidence to the contrary.

If qualified female judicial candidates are so difficult to come by, how did Obama manage to nominate so many? Whelan suggests that only those with a “very robust quota mentality” would even ponder this question. He argues that the president “is entitled to select nominees” who “share his Administration’s judicial philosophy” and refrain from criticizing him.

Trump plainly agrees. The president campaigned on appointing staunch conservatives to the Supreme Court, and he recognizes that picking far-right judges is essential to appeasing skeptics in the GOP base. He has outsourced this task to a small clique of advisers, namely White House counsel Don McGahn and Federalist Society chief Leonard Leo. The Federalist Society, an influential group of conservative lawyers, has spent decades grooming its members for future government service, particularly on the bench. Since its foundation in 1982, the organization has achieved an astonishing level of success, building an alternative legal elite whose views closely mirror those of the Republican Party.

The Federalist Society does not provide statistics about its members, but its leadership is predominantly male; all 12 people on its board of directors, for instance, are men. Harsh Voruganti, an expert on the judicial-nomination process who runs the nonpartisan Vetting Room blog, has written that the Federalist Society’s overall membership is “predominantly white and male.” ThinkProgress’ Ian Millhiser, who reports on the group’s annual meeting every year, told us attendees are “overwhelmingly male.”

Because Trump draws so heavily from the Federalist Society, some gender disparity among his judicial nominees might be inevitable. But the president’s advisers don’t rely exclusively upon the organization to identify possible judges; most of his district court nominees aren’t Federalist Society members, though many have some affiliation with the group. These advisers could have made a concerted effort to look farther afield for conservative women. It appears they have not.

Trump’s allies dismiss this disparity by insisting that, as Whelan argued, the percentage of women nominated by Trump roughly mirrors the percentage of qualified female candidates. Carissa Byrne Hessick, a law professor at University of North Carolina School of Law who has praised many of Trump’s nominees, vigorously contested that premise. “Having not been involved in the judicial nomination process, I don’t know why the president has nominated only six women to be appellate judges,” Hessick told us. “But the suggestion that there are only six conservative women in this country who are qualified to sit on the federal courts of appeals is incorrect and offensive.”

Renee Knake, a law professor in legal ethics at the University of Houston Law Center, is unimpressed by Trump’s record on nominating female judges. Knake, a co-author of a forthcoming book about nine women who were short-listed for the Supreme Court before Sandra Day O’Connor became the first female justice, told us that “there are ample numbers of qualified women to nominate.” She continued:

On the Whelan piece in particular, I find his comparisons to presidents in the past as a way to justify continued low numbers absurd (“in the same ballpark as Bush’s and Clinton’s”). That’s over a decade ago; there were plenty of women then and even more now. As I’m sure you well know, women have been entering the profession in equal numbers to men for decades and succeeding in all areas of the profession.

Knake speculated that the disparity in nominations stems in part from what credentials make candidates seem qualified. “I think that many women lawyers do not strategically plot for positions on a court, and so they may not have the easily identifiable ‘conservative’ record,” Knake said.

But some conservative women in the law agree with Whelan’s findings, justifying the gender imbalance by claiming there just are not that many conservative women in the field.

According to Joyce Lee Malcolm, a professor at George Mason University’s Antonin Scalia Law School who specializes in constitutional law and the Second Amendment, “23 percent of confirmed nominees seems a good number,” given that “33 percent of judges [are] women and many of these, maybe most of these, [are] progressives.”

Likewise, Amy Wax, a professor of social-welfare law and policy at the University of Pennsylvania Law School, told us, “Women with elite legal backgrounds and training are predominantly left of center, more so than are men.” She noted:

Also, as a general matter, we should resist the knee jerk presumption, which is part of the left orthodoxy, that men and women are equally represented among the most qualified or accomplished in any given endeavor or category, because in many cases it’s just not so. For example, top conservative intellectuals and scholars are overwhelmingly men. The ratios are quite dramatic, as anyone who is interested in conservative thought knows.

Elizabeth Price Foley, a professor of constitutional law and civil procedure at Florida International University’s College of Law, thinks the gender imbalance of Trump’s nominees “should not be surprising,” given Trump’s conservative political philosophy:

[I]t would be unrealistic to expect him to elevate membership in a particular category—be it racial, gender, religion or sexual orientation, or whatever—over merit-based qualifications such as education and experience. Conservative philosophical objections to affirmative action suggest that achieving category-based quotas, or emphasizing category-based “diversity,” is not going to be a primary objective for President Trump’s nominating decisions, unlike President Obama’s.

Supporting a diverse judiciary, however, is not the same thing as calling for a quota system. And if it’s true that there are too few conservative women for Trump to nominate, that would seem to be an indictment of the conservative legal movement itself. If the Federalist Society has truly alienated generations of right-leaning female lawyers—a claim implicit in Whelan’s defense of the current gender imbalance—then the problem goes much deeper than Trump. And if there are, in fact, a substantial number of qualified women attorneys on the right, then Trump’s pathetic numbers cannot be defended as anything but sexism by his advisers. It’s 2018. If the Federalist Society really is a frat house, it’s time for Trump to look farther afield.