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Biden Should Nominate More LGBTQ+ Federal Judges, Lambda Legal Urges

President Joe Biden
Courtesy White House

A new Lambda Legal report praises the president for diversifying the judiciary and repairing Trump-era damage but finds one kind of diversity is lacking.

President Joe Biden has had great success in getting his judicial nominees confirmed, and they're a diverse group -- but LGBTQ+ people are still underrepresented in the federal judiciary, notes a report released Tuesday morning by Lambda Legal.

"The current federal judiciary fails to reflect the diversity of the nation it serves, a reality that has devastating, real-life consequences for those on the margins of society," Sharon McGowan, chief strategy officer and legal director of Lambda Legal, said in a press release. "The nomination and confirmation of more openly LGBTQ+ judges must be a priority for the Biden administration in order to enhance the quality of judicial adjudication and improve the credibility of the federal judiciary as a whole."

"It's so important to have the courts reflect the communities they serve," Sasha Buchert, a senior attorney with Lambda Legal, added in an interview with The Advocate. This is not to assure any specific outcome, but to maintain the public's faith and trust in the judiciary, she said.

While much public attention focuses on the U.S. Supreme Court, for which Biden will soon nominate a successor to retiring Justice Stephen Breyer, lower federal courts play a crucial role in American society. The Supreme Court decides only about 100 cases per year, while federal circuit courts -- the appellate level -- "decide tens of thousands of cases each year, often serving as the court of last resort in a wide array of civil rights issues," Lambda's report points out. That is why a president's choices for these courts and federal district courts, where initial trials take place, are so important.

The report does find much to praise about Biden's record on the judiciary. In his first year in office he has nominated 81 people for federal judgeships, and 40 have been confirmed by the Senate -- the most nominees confirmed in the first year of a presidency since Ronald Reagan's administration. Most of the remainder await a vote; no nominee has been rejected, but a few have been withdrawn.

Biden and his administration "have prioritized judicial nominations in a way that other administrations have not," Buchert said. They also recognized that there was much damage to be repaired after Donald Trump's presidency, she said: "They've seen what happened to the courts over the last four years."

For instance, 40 percent of Trump's appointees to federal circuit courts "had a demonstrated history of hostility towards the LGBTQ+ community," according to Lambda's report. They have continued to show that hostility in their rulings since being confirmed, with one writing an opinion denying health care to a transgender woman and misgendering her throughout, and a couple of others voting to strike down a ban on conversion therapy.

What's more, most of Trump's appointees were straight white men. "It was a significant whitewashing of the judicial system that already failed to adequately represent the diversity of the United States," the Lambda report states.

Biden's appointees, on the other hand, are diverse in terms of gender, race, ethnicity, and professional experience. Of the 81 nominees, 52 are women, and 31 of them are women of color. The total for people of color is 46. Of the 40 who have been confirmed, 32 are women, including 21 women of color, and the total for people of color is 27. Also, 27 of the 40 bring diversity in experience, with 15 of them being former public defenders.

One who's been confirmed, Beth Robinson, is the first out lesbian judge to be on a federal circuit court; she was confirmed last year to the U.S. Court of Appeals for the Second Circuit, which hears appeals of cases from federal courts in New York, Connecticut, and Vermont.

But LGBTQ+ people are still severely underrepresented in the federal judiciary, Lambda points out. Only 1.6 percent of federal judges identify publicly as LGBTQ+, compared to 5.6 percent of the total population. Biden's nominees have included only five members of the LGBTQ+ community, and there has never been an out bisexual, transgender, or nonbinary federal judge. There have been only 20 out federal judicial nominees over the course of U.S. history, and only 14 are current federal judges. And 33 states, the District of Columbia, and two U.S. territories have no out judges on either their federal district or circuit courts. The states are mostly in the South and Midwest.

One of the best ways for the Biden administration to find LGBTQ+ judicial nominees is to consult with senators from the states where vacancies, Buchert said. Senators and the administration should encourage qualified LGBTQ+ candidates to apply, the report states, adding that "in particular, strong LGBTQ+ candidates of color should be identified, encouraged to apply, and supported through the daunting nomination process."

"The Biden administration has an incredible opportunity to build on the meaningful strides made during its first year in office to diversify and rebalance the federal judiciary with a historic number of nominations of women and people of color, including the opportunity to nominate the first Black woman to sit on the Supreme Court," Kristine Kippins, deputy legal director for policy at Lambda Legal, said in the press release. "But meaningful diversification must include more openly LGBTQ+ nominees in the coming year -- and especially LGBTQ+ people of color and transgender, nonbinary, and bisexual nominees -- to ensure all who walk through courthouse doors will be treated with dignity and that diverse voices are able to participate in the development of the law."

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