More Black Women Ascend to Appellate Courts, While Men Stall (1)

 

The presence of Black men serving as active judges on the federal appellate courts has stalled in the past 10 years, even as President Joe Biden has prioritized demographic diversity in his judicial nominations and almost doubled the number of Black women on the circuit courts.

Several Black male appellate judges have assumed a form of semi-retirement or entirely left the bench under Biden, who’s appointed one Black man and 13 Black women to the circuit courts after four years in which President Donald Trump appointed no Black appellate judges.

While greater representation of Black women in the appellate ranks is long overdue, something is “absolutely” lost by not having more Black men, said Andre Davis, the second Black man to serve on the US Court of Appeals for the Fourth Circuit.

“When you have a Black man in the room with those other two judges, it’s a dynamic that is very critical to fair and impartial justice and the correct outcome of cases,” said Davis, who took senior status in 2014 and retired in 2017.

Stagnated Representation

There are 13 Black women active judges on the 179-member appeals bench compared to 11 men, according to Federal Judicial Center data. The appointment of Black men to the US circuit courts has stagnated in the past decade.

Biden appointed one Black male circuit judge—Andre Mathis to a Tennessee vacancy on the Sixth Circuit. A second attempt stalled when the nomination of federal prosecutor Jabari Wamble to a Kansas seat on the Tenth Circuit didn’t advance. Wamble subsequently withdrew his nomination to a federal trial court.

In May, Biden nominated US magistrate Judge Embry Kidd to a Florida seat on the Eleventh Circuit. Kidd, who is scheduled to appear Wednesday at his Senate Judiciary Committee confirmation hearing, would replace Charles Wilson, the second Black judge to serve on the Deep South bench. Wilson himself was appointed to the seat vacated by the first Black man on the court, Joseph Hatchett.

Prior to Mathis’ appointment, the last Black male appellate appointee was DC Circuit Judge Robert Wilkins, who was nominated by President Barack Obama.

Meanwhile, two Black male appellate judges have already entirely left the bench, including Joseph Greenaway Jr. of the Third Circuit, who joined Arnold & Porter, and Paul Watford of the Ninth Circuit, who left for Wilson Sonsini Goodrich & Rosati. Two more have taken senior status, a form of semi-retirement that allows for a lighter workload: Theodore McKee of the Third Circuit and R. Guy Cole Jr. of the Sixth Circuit.

James Andrew Wynn of the Fourth Circuit and Charles Wilson of the Eleventh Circuit have also announced plans to take senior status.

Fourth Circuit judges Roger Gregory and Eric Clay, and Fifth Circuit judges James Earl Graves and Carl Stewart are among a pool of Bill Clinton, George W. Bush, and Obama appointees who’ve been eligible for senior status under Biden but have held onto their seats. Gregory is the first Black judge to ever serve on the Virginia-based Fourth Circuit. Stewart is the second Black judge to be appointed to the Louisiana-based Fifth Circuit.

The reasons why judges remain active often aren’t public, although the prestige and intellectual challenge often keep life-tenured judges on the bench long past when they’re eligible to retire.

At least one federal judge has been explicit about their desire to be replaced by a nominee of a similar background. When Biden announced plans to nominate Detra Shaw-Wilder to fill a seat on the US District Court for the Southern District of Florida, Rep. Frederica Wilson (D-Fla.) said in a release that her predecessor Marcia Cooke’s “dying wish” was that she be replaced by a Black woman.