Donald Trump’s presidency has been a disaster for judicial diversity. His judges are overwhelmingly straight, white, and male. Many are wealthy corporate attorneys born into privileged American families whose connections guided them along a path to power. In other words, Trump judges do not look like the country they serve.
While the federal bench grows more homogeneous by the day, Democratic governors are diversifying their state judiciaries to an unprecedented degree. On Monday, Washington Gov. Jay Inslee, a Democrat, elevated Grace Helen Whitener to the state Supreme Court. Whitener is a disabled black lesbian who immigrated from Trinidad. She joins Inslee’s two other appointees: Raquel Montoya-Lewis, a Jewish Native American who previously served on tribal courts, and Mary Yu, an Asian-American Latina lesbian who officiated the first same-sex marriages in the state.
Whitener has been an outspoken advocate of judicial diversity and sought to educate marginalized communities about the legal system. “We have a limited number of judges of color on our benches here in Washington State,” she said in 2019. “It’s not reflective of the population that it serves. And one core cannon of our judicial system is trust and confidence—building it on our communities. And having a judiciary that is reflective of the community that it serves is truly important in raising trust and confidence in the services that we provide as judicial officers.” Shortly before her nomination to the Supreme Court, Whitener said: “I believe, as a marginalized individual—being a black gay female immigrant disabled judge—that my perspective is a little different. I try to make sure that everyone that comes into this courtroom feels welcome, feels safe, and feels like they will get a fair hearing.”
Yu has also noted the value of diverse perspectives on the bench. “The more we reflect the community we serve,” Yu said in 2016, “the greater confidence we instill in what we do. We are our best when we have diverse perspectives at the table and we are at our best when we are racially and geographically diverse.” At her own swearing-in ceremony, Montoya-Lewis also spoke about the ways her identity informs her jurisprudence. “I was raised to remember that I come from those who survived,” she said, referencing the struggles of her Jewish and Native American ancestors. She explained how that family history helped her form a perspective on justice not an “abstract concept” but as “a term of action.” “I’m honored to bring that perspective to the Supreme Court,” Montoya-Lewis said, “as well as the stories that helped me to formulate it.”
Washington now has arguably the most diverse court, state or federal, in American history. (In Washington, the governor can fill vacancies, state Supreme Court vacancies, and those justices must later run for election.) There are currently seven female justices, including the chief justice—a record for any state Supreme Court—and just one straight, white, male justice. Its closest competitor is the California Supreme Court. Three of Democratic Gov. Jerry Brown’s four appointees to that court are people of color: Goodwin Liu (who is Asian-American), Mariano-Florentino Cuéllar (who is a Latino immigrant), and Leondra Kruger (who is black).
Washington and California’s Supreme Courts are, unfortunately, outliers on this front. A 2019 Brennan Center for Justice study found that most states’ high courts are “overwhelmingly white and male.” It noted that 24 states have all-white Supreme Courts, while just 15 percent of state Supreme Court seats nationwide are held by racial minorities—even though nearly 40 percent of the country is non-white. Eighteen states never seated a black Supreme Court justices and 13 “never seated a person of color as a justice.” Women held just 36 percent of state Supreme Court seats.
Unsurprisingly, progressive governors are substantially more likely to appoint diverse judges. From 2017 to 2018, Democratic governors appointed 83 percent of justices of color, while Republican governors appointed 77 percent of white justices. But Republican governors aren’t the only roadblocks to a diverse judiciary; many states elect their justices, and judicial elections strongly favor white people. From 1960 to 2018, just 17 justices of color first reached the bench through the ballot, compared to 141 justices of color who were appointed. The Brennan Center found “racial disparities in virtually every element” of state Supreme Court races. Candidates of color receive fewer donations, more likely to be targeted by outside interest groups, and more likely to face a challenger. If they’re running in a retention election—meaning they’re not competing against another candidate—they’re more likely to lose. Moreover, voters in many states engage in “racially polarized voting,” meaning white voters are less likely to vote for a non-white candidate.
Whitener and Yu are correct that judicial diversity is important to the legitimacy of the courts. One scholar has found that citizens “of all races and ethnicities are more likely to believe that our justice system is fair and equitable to all when judicial decisionmakers reflect the diversity of the citizenry.” Diverse judges also tend to have a deeper understanding of the ways that illicit bias can infect law and policy. A non-white judge may be more attuned to the racism that motivates voter suppression measures and draconian criminal penalties; a female judge may know not to deploy sexist tropes when upholding restrictions on women’s liberty; a gay judge may better understand the animus that lies behind anti-LGBTQ laws. It is thus no surprise that the conservative Federalist Society, from which Trump has drawn his judges, is dominated by straight white men, or that Trump has elevated so few non-traditional nominees to the bench. Republicans fear that diverse judges pose a threat to their political project.
The Washington Supreme Court is notably liberal; in recent years, it has issued decisions abolishing capital punishment and juvenile life without parole while upholding LGBTQ non-discrimination laws and progressive public financing of elections. It represents a vision of a different kind of jurisprudence from a radically diverse bench—what the federal judiciary might look like if a Democratic president and Senate controlled the judicial confirmation process. Joe Biden has already pledged to name a black woman to the U.S. Supreme Court if elected, but he’ll have scores of lower court vacancies to fill, as well. He should look to states like Washington to learn how to reshape a judiciary to look more like the country it serves.