Saturday, November 18, 2017

Trump choosing white men as judges, highest rate in decades

Trump choosing white men as judges, highest rate in decades

It is possible that the administration has chosen the most qualified people. I would have no way of knowing that, but I am skeptical, because the percentage of nominees is not kinda-sorta slightly out of line with America's demographics, but is skewed dramatically. 91% of the nominees are white, and the vast majority of those white people are men.

The first number in the list below represents the percentage of nominees. The numbers in parens represent that group's percentage of the country's population.

74% are white men (32%)
17% are white women (33%)
7% are non-white men (17%)
2% are non-white women (18%)

The 9% non-white (men + women) breaks down as follows:

5% Asian (5%)
2% Black (13%)
2% Hispanic (17%)


The following are the ratios of the nominee percentage to the population percentage, in descending order of representation:

White men 2.3x
Asians, both genders 1x
White women .5x
Non-white men .4x
Black and Hispanics, both genders .1x
Non-white women .1x



White men are wildly overrepresented

Asians are represented fairly

White women have about half of the representation their population would call for.

Non-white women are basically ignored completely.

Within the non-white segment, the subsets of Blacks and Hispanics of both genders are basically ignored completely. More than half of the minority nominees are Asian, although Asians represent only one out every seven non-whites in the country.


  1. Bogus use of stats. Comparing judicial nominees to the population is pointless, as not anyone can be a judicial nominee. What matters is the pool: what's the breakdown of potential nominees, or at least the breakdown of current judges. That would give a better idea of how skewed it is.

    1. Your argument makes sense on the surface, but it's actually quite weak. Depending on the level of the court, any interested lawyer (or law professor) can be appointed, so that's the pool of current nominees for many of the appointees.

      So, one could google the number of women lawyers: Women have been approximately half of law school graduates for the past 20 years.

      Racial minorities account for 15.7% of lawyers.

      This isn't surprising that these numbers would be roughly similar to the overall population given that there are over 1.3 million lawyers in the U.S, if you believe that all men (people) are created equal and that (most) barriers to all people being able to go to law school have been removed.

      Or one could have simply read the article to see that Obama had no problem finding non white men to appoint to the courts: In his first year, Obama’s confirmed judicial nominees were 31 percent white men.

      My personal view is that outside of maybe 1% of people who are genuine outliers who are more capable at nearly everything than the average person, the idea that there is a 'best person for the job' is bogus. What there really is are different qualified people of more or less equal overall caliber some of whom are likely to be better at some aspects of a job and others who are likely to be better at other aspects of a job.

      Anybody who follows sports should recognize this. Being Canadian, the example I use is of National Hockey League Defensemen (of course, in this case they are all men.) Each of the (now) 31 teams has 6 defensemen for a total of 186. There are maybe five absolutely elite defensemen who are well above the rest at everthing (Erik Karlsson, Brent Burns - most of the time, Drew Doughty, maybe still Duncan Keith, maybe P.K Subban.)

      The rest of the defensemen are better than others at getting the puck out of the defensive end (puck moving defensemen), or better at hitting opponents and clearing the front of the net (stay at home defensemen) or are better at scoring (offensive defensemen) and there are also a few power play specialists.

      So, in this case, who is the best defensemen for a team: it depends what they are looking for.

      For most jobs, employers are looking at employees who combine all the aspects: puck movers, stay at home types, scorers and power play specialists, but unless they can hire one of those 3-5 of 186, what they'll hire is one of those who are better at some things than other candidates, but not as good at other things.

    2. As I pointed out, I don't know whether the most qualified people have been chosen for the jobs (although I doubt it).

      In addition, I did not offer an opinion that more minorities and women SHOULD be nominated. Many people would argue that the judiciary must become more like the face of America and that, given that, minorities should be OVER-represented in the new appointments in order to begin the process of correcting for the existing imbalance, since merely proportionate representation can't balance the scales until all the existing judges are dead.

      As for the composition of the pool, I won't repeat what Adam has thoroughly delineated above, but I will add that Trump reached outside of that qualified pool to name four white guys who are not qualified, per the ABA.

      But I left all those points off the table, for other people to discuss. I just presented the raw facts. It seems to me that the sum total of a single black person and a single Hispanic out of 58 nominees speaks for itself, no matter the composition of the pool. It's difficult to believe that only 3% of the qualified applicants are either black or Hispanic.

      (Especially given that four of the white men appear to be supremely unqualified. I am having a tough time buying in to the argument that there are no qualified blacks or Hispanics in the whole country, so Trump had to reach into the "unqualified" pool to name some white guys.)

  2. But I think I could probably go to the phone book in my small town and find a black or Hispanic person more qualified than Brett Talley! (Not to mention someone in closer touch with reality.) And I could probably even find one with political positions acceptable to Trump - and we don't even have many black or Hispanic people living here.

  3. I agree that for all I know these judges are well-qualified, I don't know otherwise. But look at his cabinet, this is what he means when he says he hires "the best people". Likelier they will be chosen based on three main criteria -

    A recommendation from whoever has been kissing his ass most ardently ("the politics of pull" for all you Ayn Rand fans).

    Judges who have paid public lip-service to conservatism and/or Trump.

    For life appointments, being just old enough to be credible but no older, so they can be around fucking up the courts for years to come.

    So yeah, elections have consequences. We'll get judges who are more Scaramucci than Learned Hand, regardless of demographics. As a first guess.

  4. The one driving issue for many Republicans that dislike Trump, but who chose to vote for him anyway, (aside from disliking Hillary) was nominating conservatives to the bench. That is the one area where Trump has most consistently followed through on his promises.

    The pool of qualified potential nominees could therefore be seen as not as the population as a whole, or lawyers in general, but lawyers who have demonstrated a conservative/originalist judicial philosophy. The question is how many non-white women are members of the Federalist Society?

    You can argue about whether judicial philosophy should be more important than ethnic and gender diversity. But seeking conservative nominees, not opposition to diversity is clearly the reason the nominees skew so white and male.

    Oh one thing I think its very important to realize is that being rated unqualified by the ABA does not necessarily mean a nominee is objectively unqualified. The ABA is a notoriously liberal organization and has a history of down rating conservative nominees. As a result, George W. Bush stopped submitting nominees to the ABA for evaluation and the Trump administration just announced they will stop as well.

  5. Oh Christ. The conservative=originalist trope again. Originalism has never been more than screwing individuals to benefit governments and companies, then pointing at some passage in the Constitution and claiming that it justifies your ruling. Bork got turned down to the Supremes because he ruled against private citizens every single time. He wasn't "smeared", he was legitimately biased. Then Rehnquist, Scalia, up through the peckerheads of today. Kelo v New London, Citizens United, and coming soon "ain't no abortions in the Constitution".

    This is not conservative. In theory it is a reactionary philosophy, in practice it is just putting your thumb on the scale.

    OK, that was my rant, I'm off to get on the outside of some beers. Oh - typo in your last paragraph, there's no "b" in "literal".

    1. Kelo v New London? Check your facts: the 4 conservative justices sided with the homeowner. It was the liberal justices (along with perpetual swing vote Kennedy) that expanded government power.

  6. You learn something new every day if you're not careful. I stand corrected

  7. My problem with the judicial philosophy of many if not most lawyers that have been appointed by more recent Democratic presidents is that they seem to first decide the outcome they prefer and then work backward to find the reasons. I'm sure people will argue that Republican appointees do the same thing and I can't say that never happens. But I can't recall too many instances where progressive critics cite the reasoning behind a decision as opposed to the outcome.

    The Citizens United decision is loathed on the left. But I don't think most people really understand what that case was about. Citizens United involved a documentary critical of Hillary Clinton that the Court of Appeals ruled could not be shown or advertised because it would violate campaign finance laws. During oral argument, the government's lawyer was asked if the federal government could prohibit the publication of a book within 60 days of an election and he said yes. The Supreme Court said No. People can argue over whether nude dancing is protected by the 1st Amendment, but express political advocacy is (or should be) clearly protected. As for whether a corporation can have 1st Amendment rights, ask the New York Times or the Washington Post. The reasoning here makes sense to me and seems to flow directly from the Constitution.

    But much as I enjoy I good legal debate, my larger point was not that the conservative/originalist judicial philosophy is the correct one, though I happen to think that it is. My point was that it was a desire to appoint judges that share that philosophy that lead to the lack of diversity in selections.

    1. 1.There are many websites written by liberal lawyers and other legal scholars where they criticize the reasoning behind a judicial decision and not the outcome. For instance, criticizing Scalia for his increasing contradictory arguments in his later years on the Supreme Court became something of a parlor game.

      2.You seem to have done that yourself here, actually. You mention whether a 'corporation' can have First Amendment rights, but then mention a couple (liberal) newspapers, but ignore that the First Amendment specifically mentions 'the press' ("The freedom of the press") as being protected from government interference but does not provide similar protection to any other corporation or business entity.

      So, whatever a corporation is entitled to ist Amendment rights or not, arguing all corporations have that right because 'the press' has that right is a completely fallacious argument.

    2. Last paragraph should say 'so whether a corporation is entitled to have First Amendment rights or not'

      3.This doesn't prove anything one way or the other, but I would ask you to consider your support for a Judicial philosophy, when, by your own admission, the vast majority of those who support it are one single identifiable group: white males.

    3. From what I have seen, every Supreme Court justice, in almost every case, determines the outcome they want, then tries to come up with a legal justification. That's why it matters who gets nominated. Souter was an exception, but he was the only one, and he pretty much pissed off everyone by doing exactly what a judge is supposed to do.

  8. I'll agree with you on that, the set of people Trump sees as judgebait is going to skew white/male, that's just a fact.

    The main defects of Citizens United are in how it is used as a precedent -

    Money = speech - this is asinine, on the face of it. If it takes a law to undo this, we need that law

    Corporations are people - if this is true, then they are people with a unfair advantages over normal, flesh-and-blood people. They don't get sick, in theory they can live forever. It is easy for them to buy or even fulltime employ superior legal representation, etc.
    In reality, corporations are machines built to deflect responsibility from their investors. To let this entity have standing to sue or be sued is one thing, but to imply that it can have "values" or be "offended" is a flying leap too far. The fix here appears to be a Constitutional amendment; one that we sorely need.

  9. Corporations aren't people, though they have been treated as legal persons for many purposes going back hundreds of years. But that's not the reason corporations should have First Amendment Rights. Corporations have First Amendment rights because the people who own that Corporation have First Amendment rights.

    Jeff Bezos bought the Washington Post a few years ago. Because of the First Amendment, he can use the paper to expressly advocate for or against the election of a candidate within 60 days of a general election, even if a a campaign finance law might say otherwise. Jeff Bezos can affords to buy a newspaper, most people can't. But they can contribute to a 501C(4) corporation that will pool money from many contributors and then advocate on their behalf. Most contributors to the NRA or the Sierra Club are not wealthy, but they do have points of view they want to advocate.

    Money is not the same thing as speech. But because money is necessary to ensure your speech can be heard by large numbers of people, political spending and political contributions affect First Amendment rights and are therefore protected by the First Amendment. Limits on contributions are permitted because of the possibility and appearance of corruption that might exist without limits. But the right to spend unlimited amounts of your own money has been protected since the early 1970's. This again is a right that can only be effectively exercised by the rich. Allowing the less wealthy to organize and advocate for or against electing that rich guy only seems fair.

    Personally, I think they should repeal all limits on political contributions from Americans. I'd keep the restrictions on foreigners. But require all contributions be immediately posted on the Internet so the voters can decide whether a candidate might be compromised by a contribution. Sunlight is the best disinfectant. This would most likely direct contributions away from the PACs and back to the candidates. I think that would be healthier than our current system.