It took the only Black Republican to block Judge Thomas Farr from a lifetime appointment to the federal bench.
What South Carolina Sen. Tim Scott did was step up in a way that Democrats and many Americans — particularly minorities who have felt the brunt of President Donald Trump’s court appointments — had hoped others would.
“There are lingering concerns,” Scott said when announcing his decision that effectively ended Farr’s bid to sit on the bench. “Issues that could affect his decision-making process as a federal judge.”
Scott referred to, in part, a Justice Department memo written under President George H.W. Bush, which shed new light on Farr’s connection to former North Carolina Sen. Jesse Helms’ alleged efforts to suppress Black voters.
“This, in turn, created more concerns,” Scott said. “Weighing these important factors, this afternoon I concluded that I could not support Mr. Farr’s nomination.”
However, the “concerns” aren’t too different than Trump’s Supreme Court picks, Brett Kavanaugh and Neil Gorsuch, both controversial nominations who each went on to win confirmation despite excess baggage that sounded the alarms throughout Capitol Hill and across the United States.
And while the president’s nominations to the nation’s highest court garner the most attention and often the most controversy, federal and appellate court appointments almost always fly under the radar.
Alarmingly, just one of Trump’s 68 federal judge appointees count as African American. Further, Trump has already appointed 26 appeals court judges, which is more than any other president in the first two years of a presidency, according to the Brookings Institution.
None of those appointees are African American.
The significance of federal and appellate court appointments is that presidents can use them to reshape the federal judiciary and seek to appoint judges they believe share their ideological leanings.
According to a recent analysis by Reuters, the 13 appellate courts wield considerable power, usually providing the last word on rulings appealed from lower courts on disputes involving federal law. Their rulings can be challenged before the U.S. Supreme Court, but most such appeals are turned away because the high court typically hears fewer than 100 cases annually.
Eleven of the courts handle cases from specific multi-state regions, one handles cases from D.C., while another specializes in patent cases.
“President Trump has been in office for almost two years and during that time African Americans and other marginalized communities have lost a lot,” said Congressional Black Caucus Chair Cedric Richmond (D-La.). “There is no question that our community — and the country — are worse off now than they were before President Trump took office.”
Other organizations like the American Bar Association and the National Bar Association — an African-American group — stunningly have remained silent.
Multiple messages with leaders at both organizations have gone unreturned for weeks before publication of this article.
“Trump’s judicial nominees are predominately White men,” said Nora Demleitner, who holds the Roy L. Steinheimer Professorship at Washington and Lee University School of Law in Virginia. “The percentage of women and [all] minorities appointed, especially to the important federal appellate bench, hasn’t been as low since George H.W. Bush.
“This means women generally and members of minority groups, including African Americans, will see fewer people who look like them on the federal bench,” Demleitner said. “That also amounts to fewer role models for women and minorities, at a time when more than half of all law students are female and a substantial percentage is non-White.”
Women account for 28 percent of the 67 judges Trump has successfully appointed to the federal courts since taking office, according to an Oct. 2018 PEW Research Center report — well below the share appointed by Barack Obama, whose 324 judicial appointees were a record 42 percent female.
Democratic presidents have also appointed a larger share of racial and ethnic minorities to the federal bench than Republicans. Of the 382 racial or ethnic minorities who have ever served as federal judges, 268 — or 70 percent — were appointed by Democrats. And 73 percent of the 202 currently active judges who are racial or ethnic minorities were appointed by Democrats, according to PEW.
Seven of the 67 judges Trump has appointed, or 10 percent, are racial or ethnic minorities — the lowest such percentage of any president of either party since George H.W. Bush, whose appointed judges were also 10 percent non-White, according to the PEW.
Five of the seven racial or ethnic minority judges Trump has successfully appointed are Asian, one is Hispanic (Fernando Rodriguez Jr.) and one is Black (Terry Fitzgerald Moorer).
It’s also noteworthy that the Republican-led Senate blocked most of Obama’s 2015 nominations, including several in the appellate courts and one on the Supreme Court.
And, that Trump is quietly reshaping America’s courts isn’t lost on human rights groups
“Of his 48 appellate nominations, none are African-American,” Vanita Gupta of the Leadership Conference on Civil and Human Rights told National Public Radio. “None are Latino. Only nine are women. Our nation’s great diversity should be reflected in its government institutions, especially the federal judiciary, which serves as the guardian of our rights and liberties.”
It’s obvious that Trump’s picks mean fewer people who have experienced what it means to be Black or a woman will be on appellate and trial court benches, said Demleitner, a former law school dean who co-authored the casebook “Sentencing Law and Policy.”
“Since being an appellate judge already makes for a somewhat cloistered existence, life experience is crucial,” Demleitner said. “Many of the appointees to the circuit courts are partners from large law firms who have relatively limited experience with criminal justice issues and a substantial number of judicial appointees have former prosecutorial experience, which is likely — though not inevitably — making them more favorably inclined toward the law-enforcement’s perspective.”