In Kansas, Missouri and at the federal level, we need judges who look like America

Federal judges often decide cases involving discrimination based upon race, sex and age, yet the federal judiciary itself is made up predominately of increasingly young white males. During the first four years they were in office, presidents from John F. Kennedy through George W. Bush appointed U.S. Court of Appeals justices who averaged 52 to 53 years of age. During President Barack Obama’s first 3 1/2 years in office, the average age of the 30 Court of Appeals judges he appointed was 57 years. Under President Donald Trump, the age of the 53 judges he appointed to the Court of Appeals plummeted to 48.

President Bill Clinton’s two appointees to the U.S. Supreme Court averaged 57 years of age. President George. W. Bush’s three appointees averaged 55, and Obama’s (including thwarted nominee Merrick Garland) averaged 56. Trump’s three nominees average 50 years of age. Since 1954, only six nominees to the Supreme Court have been age 60 or older. One of those, William Rehnquist was already on the Supreme Court and was nominated to be Chief Justice. Three of the nominees that were over 60 — Robert Bork, Harriet Miers and Merrick Garland — never made it to the Supreme Court.

Why are many appointees to the federal bench becoming increasingly younger? Because the U.S. Constitution states that Article III judges “hold their offices during good behavior,” which in practice means that many such judges have long careers on the bench. Presidents want to appoint judges who reflect their political views. In Trump’s case, he wants conservative judges to appease his conservative base. It is one of the main reasons Trump has been supported by traditional Republicans such as Senate Majority Leader Mitch McConnell and Sen. Ted Cruz, as well as evangelical Christian leaders on the right.

Not only is the trend of younger judges occurring in the federal courts, but also in state courts. Governors are increasingly appointing younger judges to their states’ supreme courts and courts of appeals. Appointees to the Kansas Supreme Court must be a mere 30 years old with 10 years of experience as an attorney or judge.

Women are still a small minority on the federal bench. Only 36% of U.S Court of Appeals justices are women. Obama appointed two women to the U.S. Supreme Court. Trump has had three opportunities to appoint a woman to the Supreme Court, but nominated only one, Amy Coney Barrett, on his third go-round. Trump’s other federal judge appointees are not only younger, but they are increasingly male. Under Obama, 45% of all federal judges appointed were women. During Trump’s term, he has appointed women to only 28% of open federal judgeships.

Kansas and Missouri have done somewhat better than federal courts in appointing women to the bench. Of the seven Kansas Supreme Court justices, three are women, including newly-appointed Justice Melissa Taylor Standridge — the first time this has ever occurred. Four of the current twelve Kansas Court of Appeals judges are women. Of the seven judges on the Missouri Supreme Court, three are women.

Nearly 80% of all federal judges are white. Republican presidents, particularly Trump, have a less-than-stellar record in appointing minorities to the federal bench. In July of this year, the Pew Trust issued a report indicating that of the judges appointed to the federal bench by Obama, 36% were minorities; Clinton’s were 24% minority and President Jimmy Carter’s 22%. George W. Bush appointed 18% minority judges; his father appointed 10%; Trump has appointed 10% and Ronald Reagan a paltry 6%. Of Trump’s minority appointees, one of 67 was Black, one was Latino and five were Asian.

Another sad fact is that few of the justices on the United States Supreme Court have ever practiced law as we know it. Of the current eight justices, only four have worked for a private law office, and generally those have been large “silk-stocking” law firms. They have little practical experience handling family law matters, auto accidents, juvenile cases and so on.

We can do better than this. The question is how to create a more diverse and experienced judiciary? Adding minimum age requirements, limiting the terms of U.S. Court of Appeals and Supreme Court justices or imposing mandatory retirement ages would require amending the Constitution or major legislative changes. It is naive to wish that whoever is president would appoint experienced and diverse judges to the federal bench.

The current president and Senate majority leader have demonstrated that their main requirement is to install young ultra-conservatives on the federal bench. Now that Democrats have gained control of the White House, their likely priority is to appoint young and liberal judges. Older, experienced, middle-of-the road judges who decide cases based on the facts and the law are becoming increasingly rare.

Tom Arnhold is a former judge on the Kansas Workers Compensations Appeals Board and a former judge advocate in the Kansas Army National Guard

This story was originally published December 9, 2020 at 5:00 AM with the headline "In Kansas, Missouri and at the federal level, we need judges who look like America."