Michael Higginbotham (Courtesy Photo)
By Michael Higginbotham
There has been much discussion over the last four years about President Trump’s racist rhetoric, policies, and past and present actions. Since Trump’s initial candidacy in 2016, Americans have witnessed this political leader characterizing Mexican immigrants as “rapists and criminals”, restricting Muslim immigration , dividing families and incarcerating brown children seeking asylum at the nation’s Southern border, calling for peaceful NFL protesters who kneel during the playing of the National Anthem to be fired, denigrating civil rights icon John Lewis, referencing Covid 19 as “the China virus,” retweeting videos of armed protesters chanting white power,” alerting white supremacist groups to “stand down and stand by,” banning racial diversity and inclusion training programs for federal employees, and explaining that there are “good people on both sides” of the protests over banning Confederate monuments including Neo Nazi counter protesters.
Since Trump’s inauguration, he has demonstrated a blatant hostility to non-whites rarely seen from the White House since the Woodrow Wilson administration in the early 1900’s. Wilson segregated much of the federal workforce and fired most non-menial black civil servants, often praised white supremacist groups like the Ku Klux Klan, and screened and then raved about the blatantly racist movie “Birth of a Nation” at the White House in 1915. Trump’s racist manifestations are most evident though in his judicial appointments.
During the last four years, Trump has nominated the least diverse group of judicial nominees since the Eisenhower administration in the 1950’s. This racial exclusion is most apparent in nominations to the federal courts of appeals, the second highest level in the judicial system. In 53 nominations to the federal courts of appeals, Trump has not put forward one African American candidate. In 218 nominations to the federal bench, 85% of Trump’s nominees have been white and 75% have been male.
Last term the Supreme Court heard slightly more than 70 cases out of several thousand it was asked to review. In the same period, the 13 courts of appeals had almost 48,000 cases filed.
The courts of appeals serve a critical role in the administration of justice on the federal level. The 13 courts of appeals hear challenges to federal district court decisions. Since the Supreme Court takes so few cases, for more than 99% of federal litigants, the courts of appeals are effectively the forum of last resort.
Trump is the first president since Richard Nixon, who served in the late 1960’s and early 1970’s, not to appoint any black appeals court judges. This number zero says a great deal about what Trump does not value.
Racial pluralism in the judiciary is valuable for at least two reasons. First, due to the current duality of experience of Americans based on race, a more pluralistic judiciary brings a breadth of knowledge of our society that is lacking otherwise. Second, a judiciary where pluralism is absent may be perceived by many as unrepresentative of the society at large and illegitimate as a system designed to render justice.
Pluralism does not mean that only a judge of the same race as a litigant will be able to adjudicate the case fairly. Rather, by creating a pluralistic court system, we ensure that judges will reflect a broad perspective and that the system will more likely have the respect of most segments of the population.
Based upon Trump’s judicial appointments record, I am forced to conclude that he does not value a racially pluralistic judiciary. Should he be reelected for a second term, I am afraid that Black court of appeals judges are a rarity soon to become extinct.
Michael Higginbotham is a professor of law at the University of Baltimore and is the author of “Ghosts of Jim Crow: Ending Racism in Post-Racial America. His E-mail address is firstname.lastname@example.org.