NEW REPORT: As Biden Vows to Nominate a Black Woman to Supreme Court, New Data Provides Snapshot of Biden’s First-Year Efforts to Diversify Federal Judiciary; Despite Making Historic Appointments, Report Reveals Biden Fell Short on LGBTQ+ Representation

As President Biden reiterates his pledge to nominate a Black woman to replace retiring Supreme Court Justice Stephen Breyer, a new report released today by Lambda Legal paints a fuller picture of Biden’s first-year record to diversify the federal judiciary — finding that despite making historic appointments to the federal bench, the president fell short in appointing LGBTQ+ nominees. The report credits President Biden for confirming more judges in his first year than any president since Reagan — three-fourths of whom are women and nearly two-thirds of whom are people of color — but asserts that the Biden administration fell short with respect to improving LGBTQ+ representation in the federal judiciary, with only five nominated judges that openly identify as LGBTQ+ (or 6% of total nominations). 

As the Senate today holds its first judicial confirmation hearing of Biden’s second year, the report further urges the White House and Senate to continue prioritizing its work repairing damage done to the lower courts by former President Trump — by continuing to confirm professionally and demographically diverse judges to the federal bench.

“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,” said Sharon McGowan, chief strategy officer and legal director of Lambda Legal. “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.”

Despite confirming a record 40 judges to the federal bench in its first year— more than any president since Ronald Reagan — and adding more diversity to the courts in terms of gender, race, ethnicity, and professional experience, the Biden administration has more to do to restore the credibility of the circuit and district courts after years of packing the courts with white, straight, cisgender men.

“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,” said Kristine Kippins, deputy legal director for policy at Lambda Legal. “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.”

Among the report’s key findings: 

Compared to the 5.6% of Americans who identify as LGBTQ+, only 1.6% of the federal judiciary openly identifies as such. As of January 2022, there are only 11 openly lesbian or gay federal district court judges and 3 openly lesbian or gay judges in the federal circuit courts. 

Enormous segments of the country are without any LGBTQ+ representation in the federal judiciary. Specifically, there are five circuits (D.C., First, Fourth, Eighth, and Tenth) covering 22 states, the District of Columbia, American Samoa, and Puerto Rico without a single openly LGBTQ+ judge at any level (district or appellate); 11 additional states also lack an openly LGBTQ+ federal judge.  

There has never been an openly transgender, nonbinary, or bisexual nominee in the history of the judiciary. Only 20 openly gay or lesbian people have ever been nominated to the federal judiciary since the ratification of the Constitution.

Only 5 of the Biden administration’s 81 nominees are openly gay or lesbian, one of whom already sits on a federal district court. None of them are openly transgender, nonbinary, or bisexual.

The report concludes by recommending the Biden administration work toward closing the gap between the 5.6% of the American population who identify as LGBTQ+ and the 1.6% of active federal judges who openly identify as LGBTQ+, especially in the 36 places where there is not one openly LGBTQ+ judge in either the circuit court or district courts. In addition, the administration and home state senators should strongly encourage all qualified LGBTQ+ people to apply and interrogate selection processes that repeatedly fail to advance such candidates.

A copy of the full report released by Lambda Legal today can be downloaded by clicking here.