Dems oppose appeals court nominee because he is White

Tom Kirsch is President Trump’s nominee to fill the seat on the Seventh Circuit Court of Appeals vacated by Justice Barrett. Kirsch is well qualified for the judgeship, and his nomination has received approval from the Senate Judiciary Committee.

However, some Senate Democrats are opposing Kirsch because he is White. For example, Sen. Blumenthal says the Seventh Circuit lacks “diversity,” and that if Kirsch is confirmed, the court will continue to be all-White.

The NAACP, in opposing Kirsch, goes so far as to call the Seventh Circuit “a segregated court.” The charge is absurd.

There are nine judges on the Seventh Circuit. They are a diverse group, as I show below. However, none is Black (the lone Black resigned a few years ago). The same is true of the court’s four senior judges.

Blacks make up about 12 percent of the U.S. population and about 5 percent of America’s lawyers (a closer approximation than raw population of the qualified “pool” for court of appeals judges). There are twelve U.S. courts of appeals (thirteen if you count the federal circuit).

Thus, as a statistical matter, one would expect that, in the absence of racial preferences for Blacks (i.e. race discrimination), a few courts of appeals would lack a Black judge. In fact, looking at just the Seventh Circuit, one can’t say that Blacks are statistically underrepresented on that court considering the pool of qualified candidates and the number of judges.

It’s also worth noting that President Trump proposed nominating Martha Pacold to the Seventh Circuit. Pacold was editor-in-chief of the University of Chicago Law Review. She clerked for two U.S. Court of Appeals judges and for Justice Thomas. She was a litigation partner at a prestigious law firm and Deputy General Counsel of the United States Department of the Treasury.

Pacold would have been the court’s first Asian-American judge. However, Senator Durbin said “no” on her. (She is now a U.S. District Court judge, confirmed by a vote of 87-3.)

Asians make up 4.7 percent of America’s lawyers, about the same percentage as Blacks. If the Democrats cared about racial diversity, Pacold would be on the Seventh Circuit.

And if diversity means more than just counting by race, the Seventh Circuit is quite diverse. It consists of:

Four women — Chief Judge Diane Sykes and Judges Diane Wood, Ilana Rovner, and Amy St. Eve

A single mother — Sykes

An immigrant who fled the Nazis — Rovner

A veteran — Judge Michael Kanne

Three former state court judges — Kanne, Sykes, and Judge Michael Brennan

Three former U.S. district court judges — Rovner, Kanne, and St. Eve

Two former law professors — Judge Frank Easterbrook and Wood

Two former prosecutors — Brennan and St. Eve

Three lawyers from private practice — Judge Michael Scudder, Judge David Hamilton, and Kanne

Three former government lawyers — Rovner, Wood, and Scudder

A former in-house counsel — St. Eve

Four Protestants — Wood, Easterbrook, Kanne, and St. Eve

Three Catholics — Sykes, Brennan and Scudder

One Jew — Rovner (plus Judge Flaum until he recently took Senior status)

Five graduates of elite law schools — Easterbrook, Hamilton, Brennan, Scudder, St. Eve

Four graduates of regional law schools — Sykes, Rovner, Wood, and Kanne

Moreover, until 2017, the Court had a Black judge — Ann Claire Williams. She took senior status and then, after half a year, decided to go into private practice.

President Trump replaced Judge Williams with Judge St. Eve, whom the Senate confirmed by a vote of 91-0. No one argued that St. Eve should be rejected because her ascension would leave the court without a Black judge. No one should make that argument now in the case of Tom Kirsch.

Joe Biden will have the opportunity to nominate a racially “diverse” judge for the Seventh Circuit to fill the vacancy left by Judge Flaum. It would be great if he did so by nominating Judge Martha Pacold, the Asian-American district court judge discussed above. She’s non-doctrinaire, as her Senate confirmation with only three “no” votes suggests.

Biden will be strongly disinclined to nominate Pacold. However, if Republicans hold the Senate and Biden wants to diversify the Seventh Circuit, avoid a nasty fight, and display a little bipartisanship, nominating her would be a good way to score that trifecta.