Mike Davis: Democrats Don’t Actually Care About Diversity in the Courts


Democrats invoke diversity and accuse their political opponents of racism so often it’s become a source of mockery from across the political spectrum. But leading Democrats‘ real record on the issues of race and gender paints a different picture. Take just one example that’s come to the forefront of the news due to Supreme Court Justice Stephen Breyer‘s announced retirement: the federal courts.

The leading (white) men in charge of the Supreme Court nomination and confirmation process—President Joe BidenSenate Majority Leader Chuck Schumer (D-N.Y.), Senate Judiciary Committee chairman Dick Durbin (D-Ill.) and Judiciary Committee member Sheldon Whitehouse (D-R.I.)—all talk a big game on the importance of diversity in the federal courts.

“Now, with his new vacancy on the court, President Biden will have an opportunity to make history by nominating the first-ever Black woman to serve on the Supreme Court,” Schumer said. “Let’s face the reality here,” Durbin added. “We had 115 Supreme Court Justices in the history of the United States. 108 have been white men. I really think there is room for us to consider not only women, but women of color to fill these vacancies.”

But what are these Democrats’ real records when it comes to supporting female and minority judicial nominees? In 2003, and for the following two years, Senate Democrats—including then-senator Joe Biden—filibustered the nomination of California Supreme Court justice Janice Rogers Brown to the D.C. Circuit, the second-highest court in the land and a stepping stone to the Supreme Court. There was much talk at the time among close observers of the courts that Brown would likely be the first Black female Supreme Court justice. But liberals smeared Brown even before she was confirmed to the California Supreme Court, inexplicably calling the first Black woman nominated to the position “unqualified” to serve. And, despite her sterling credentials, they continued to trash her after President George W. Bush nominated her to the appellate court.

Democrats’ media allies parroted baseless liberal talking points with the aim of destroying an accomplished Black woman’s reputation, all because she was nominated by a Republican president and could’ve become the first Black female Supreme Court Justice. State-sponsored media recycled left-wing salvos against Brown. And during Brown’s 2003 committee hearing, both Schumer and Durbin repeated the smear that she was unqualified.

Then-senator Joe Biden passionately filibustered Brown’s nomination—and even praised Sen. Robert Byrd, a noted former Klansman, while doing so. Biden called this filibuster the most important vote of his career. Praising a Klansman while using what Democrats now call a “Jim Crow relic” to shut down the nomination of a Black woman? Nothing more perfectly sums up Democrats’ record on race and the federal courts.

In 2005, Hilary Shelton—then the director of the NAACP’s Washington chapter—accused the Bush administration of seeking “to get some kind of credit because she is the first African-American woman nominated to the D.C. circuit.” Fast forward to this month, when the NAACP tweeted, “President Biden is right. Appointing a Black woman to [the] Supreme Court is ‘long overdue.’ Diversity of background & perspective is critical on a court composed of white men for most of our nation’s history.”

Why the change in rhetoric? Perhaps this is more about partisan politics than about actually increasing racial diversity in the federal courts.

The Democrats’ racist blockade of Judge Brown is not an isolated incident. In 2001, Bush nominated Miguel Estrada to serve on the same D.C. Circuit Court. Estrada might be on the Supreme Court today if Democrats hadn’t blocked him because “he is Latino.” Schumer filibustered Estrada seven times to prevent him becoming the first Latino on the Supreme Court.

The truth is that Democrats only pretend to want more diversity on the federal bench. At the Article III Project—a conservative judicial nonprofit this author leads—we document all the times Democrats had the chance to support women and minority judicial nominees made by Presidents Bush 41, Bush 43 and Trump. When presented with the opportunity to expand diversity on the federal bench during Republican presidencies, Democrats consistently vote against women, Black, Asian, gay, Hispanic and other minority judicial nominees. In fact, during the Bush and Trump presidencies, In fact, during the Bush and Trump presidencies, Schumer voted against 52 women and minority judicial nominees, Durbin voted against 35 and Whitehouse—who belongs to an all-white beach club in Newport, Rhode Island—voted against 28.

If diversity were their priority, why would Democrats consistently vote against the women and minority judicial nominees of Republican presidents? Because Democrats don’t really care about diversity; they care about power. And they always have. In fact, some are even calling to impeach the Supreme Court’s only Black justice, Clarence Thomas, because they don’t like his wife’s politics. This was after Democrats attempted to derail his confirmation 30 years ago with claims of sexual harassment that then-Senate Judiciary chairman Joe Biden knew were false. Even now, a liberal Black judge from South Carolina under consideration for the Supreme Court vacancy, Judge Michelle Childs—who has the support of the highest-ranking Black member of Congress, Rep. James Clyburn (D-S.C.)—is under attack by leftists for being insufficiently progressive.

According to a recent NBC News poll, Biden’s support among Black Americans has plummeted from 83 percent in April 2021 to 64 percent in January. Quinnipiac picked up on a similar trend, noting Biden’s approval among Black Americans has cratered to 57 percent. Biden and his allies are attempting to use the next Supreme Court pick to revive their flagging support among key constituencies, and that’s understandable from a political perspective. So the Supreme Court may soon have two more Black members than Whitehouse’s beach club does. But Americans shouldn’t be fooled into thinking Democrats actually care about diversity. Their priority is power.

Mike Davis is the founder and president of the Article III Project (A3P), a grassroots advocacy organization that supports constitutionalist judges, fights radical assaults on judicial independence and opposes nominees outside of the mainstream. Davis previously served as the chief counsel for nominations for then-Senate Judiciary Chairman Chuck Grassley (R-IA), where he served as staff leader for the confirmation of Justice Kavanaugh and a record number of federal circuit judges. Davis previously clerked for Justice Neil M. Gorsuch, both on the U.S. Supreme Court and the U.S. Court of Appeals for the 10th Circuit.