Wednesday afternoon, presumptive Republican presidential nominee Donald Trump released a list of 11 conservative judges that he would consider nominating to the Supreme Court if elected president. All are them are white.
To a certain extent, this is a window into Mr. Trump’s priorities. In May of 2001, President George W. Bush announced his first 11 nominees to the federal bench. The nominees included two African-Americans and one Latino, in an apparent nod to the fact that the optics of diversity matter, even in a Republican administration. Trump, by contrast, does not appear to see the value in making even a token appeal to racial diversity.
Yet, while Trump undoubtedly could have included the names of one or two judges of color on his list who would have been widely acceptable to conservatives, the fault for the unbearable whiteness of Trump’s list may not rest entirely with the bombastic businessman. The reality is that Republicans looking for conservative judges who would make plausible Supreme Court nominees don’t have a whole lot to work with. Though Bush may have cared about the optics of diversity, he did very little to actually diversify the bench.
A 2010 report on diversity in the federal judiciary determined that only 17.6 percent of the second President Bush’s judicial appointments were not white. That’s actually a drastic improvement from the first President Bush (10.4 percent) or President Reagan (5.8 percent).
Of course, 17.6 percent is more than zero. So there are, at least, some Republican-appointed federal judges that Trump could have included on his list who are not white. These judges, however, were likely to be weeded out due to one of two bars that any Republican nominee for the Supreme Court must clear.
The first is age. Presidents of both parties typically want their justices to serve for many years, and that creates a bias towards younger appointees. That’s one reason why many Court-watchers were surprised when President Obama nominated Judge Merrick Garland to fill a vacancy on the Supreme Court. Garland is 63.
The obvious candidate, if Trump wanted to name a judge of color who is widely celebrated by conservatives, is Janice Rogers Brown, an African-American federal appellate judge with stridently anti-government views. Brown, however, is 67 — older than anyone nominated to fill a Supreme Court vacancy since the Roosevelt administration.
Meanwhile, many of Bush’s other appointees to federal appellate courts fail an even more important test for Republicans — ideological purity. Jerome Holmes is an African-American judge on the United States Court of Appeals for the Tenth Circuit, but he also voted to strike down marriage discrimination against same-sex couples. Allyson Duncan is an African-American judge on the Fourth Circuit, but she is viewed as a moderate. Edward Prado is a Latino judge on the Fifth Circuit, but he was the subject of an effort by liberal advocates to convince George W. Bush to name Prado in lieu of a more conservative nominee to the Supreme Court.
Trump has not been the least bit shy about the fact that the purpose of his judges list is to shore up support from skeptical conservatives. He’s hardly going to accomplish that by including someone who once played a starring role in a liberal effort to troll President Bush.
Meanwhile, on the state courts, the state of racial diversity is even grimmer. A 2010 report by the American Bar Association determined that there are 47 people of color sitting on the highest court in their state. 47. Total. That’s less than the number of states. And the overwhelming majority of these few justices of color are either too old, too liberal, or too much of a Democrat to even be considered by a Republican president.
ThinkProgress spoke to several conservative legal scholars in researching this piece. None were able to identify a qualified, sitting judge of color who passed both the age test and the test of Republican purity. One name that did come up repeatedly, however, is Miguel Estrada.
more than a third of Obama’s appointees to the federal bench are people of color
Estrada was one of the eleven nominees Bush announced in the East Room in 2001. An Honduran immigrant, he gradated from Harvard Law School, clerked for Justice Anthony Kennedy, and rose to become one of the top conservative litigators in the nation. His nomination to a federal appeals court was blocked by Senate Democrats.
It’s a fair point that Estrada is a person of color with the traditional qualifications sought by presidents making Supreme Court nominations, and that the last Republican president would have put him on a federal court if not for Democratic opposition. But Estrada is also only one nominee. When President Obama nominated Goodwin Liu — a highly credentialed Asian-American law professor who was widely regarded as a potential Supreme Court nominee — to a federal appeals court, Republicans blocked that nomination. Obama followed it up with other highly qualified nominees of color, such as Judges Sri Srinivasan and Paul Watford, who were confirmed.
Indeed, more than a third of Obama’s appointees to the federal bench are people of color. The next Democratic president will have an easy time finding diverse candidates for the Supreme Court because Obama did not give up on naming such candidates to the bench after Liu’s nomination was rejected. And his efforts to diversify the bench have been matched by other Democratic leaders. California Gov. Jerry Brown, for example, named three highly qualified potential U.S. Supreme Court justices to his own state’s highest court — Liu, Justice Mariano-Florentino Cuéllar and Justice Leondra Kruger. All three of them are people of color.
To be sure, a Republican president interested in diversifying the Supreme Court could look beyond the bench to find nominees of color with traditional qualifications — Kannon Shanmugam, for example, is a former law clerk to Justice Antonin Scalia who is now one of the nation’s top Supreme Court advocates. But Trump chose, as most recent presidents have done, to limit his list of potential justices to sitting judges. That left him with very few, if any, diverse candidates that would appease his conservative base.