New Lambda Legal report urges the Biden administration to Queer the Bench!
By Ethan Rice, Senior Attorney, Fair Courts Project
Since taking office, President Biden has diversified the federal courts in ways unattainable in past administrations.
Nearly 65% of President Biden’s confirmed judges are people of color and 64% are women. Additionally, the Senate has confirmed 11 openly lesbian and gay Biden nominees to the federal courts. These confirmations bring President Biden’s total number of confirmed LGBTQ+ judges to the same number of LGBTQ+ judges President Obama had confirmed in his eight total years in office.
Despite these wins, however, the gap in LGBTQ+ representation on the federal bench has increased for the second year in a row. Additionally, President Biden has still not nominated a transgender, nonbinary, intersex, or bisexual attorney or attorney living with HIV to the federal courts.
Lambda Legal’s new report provides an in-depth look at federal judicial nominations and confirmations during Biden’s third year in office. The report also includes urgent recommendations for the Biden administration and the Senate to ensure every vacant seat on the federal judiciary is filled.
With eight months remaining for federal judicial confirmations, there are still numerous vacancies to fill — and the Senate has nominees waiting to be confirmed. As of April 1, 2024, there were 26 vacancies with nominees who had not yet been confirmed by the Senate, as well as 51 vacancies on the federal courts that did not have any nominees at all.
To have a chance to fill these vacancies by January 2025, President Biden must act quickly to nominate well-qualified, fair-minded judges who are committed to civil rights and would contribute meaningfully to the diversification of the federal bench. This includes ensuring representation for those who have never had it before.
Transgender and nonbinary people, whose rights are currently being litigated in federal courts across the country, have zero representation on the federal bench. There has also never been an intersex or bisexual judge or judge living with HIV on the federal courts.
Meanwhile, a staggering 26 states — including most states in the South and Midwest —still have never had an openly LGBTQ+ federal judge. That means that more than half of the country is without LGBTQ+ representation on the federal bench.
The most recent polling shows that 7.6% of the U.S. population is LGBTQ+, but only 2.6% of federal judges openly identify as LGBTQ+. This 5% gap, in fact, represents a slight increase from last year, according to Lambda Legal’s 2023 report. We need many more nominees, including more LGBTQ+ nominees of color and other historic firsts for LGBTQ+ people and people living with HIV. But currently, there are no LGBTQ+ nominees or nominees living with HIV awaiting confirmation.
To change this, we need you to tell President Biden and your senators to Queer the Bench!
President Biden has the job of nominating all federal judges. But senators from states where judicial vacancies occur also have a say in who moves forward. And all senators vote on whether to confirm a judicial nominee. This means that your senator will play a role in determining whether each nominee becomes a federal judge.
Right now, there is still time to call on our leaders to fill all the open vacancies and increase LGBTQ+ representation and representation of people living with HIV on the federal courts!