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Politics & Government

Judge On Trump's Case Is Part Of A Growing Wave Of Judicial Diversity

Donald Trump speaks at a campaign rally on Wednesday in Sacramento, Calif.
Donald Trump speaks at a campaign rally on Wednesday in Sacramento, Calif.

Unless you have been living under a rock for the past week (and no one could blame you, given the length of U.S. election campaigns), you know that Donald Trump has objected to the judge assigned to handle a lawsuit filed against him in federal court.

Trump has said that U.S. District Judge Gonzalo Curiel is "a Mexican" and biased against him because of Trump's plan to build a wall between the U.S. and that country.

When pressed by CNN's Jake Tapper about whether this assumption is racist, Trump said he didn't think so, then invoked his signature policy proposal:

"Look, he's proud of his heritage, OK. I'm building a wall. Now, I think I'm going to do very well with Hispanics."

He later added, "But we're building a wall. He's a Mexican. We're building a wall between here and Mexico. The answer is, he is giving us very unfair rulings."

Trump seems to have shifted on the issue Tuesday afternoon, releasing a statement saying "It is unfortunate that my comments have been misconstrued as a categorical attack against people of Mexican heritage ... I do not feel that one's heritage makes them incapable of being impartial, but, based on the rulings that I have received in the Trump University civil case, I feel justified in questioning whether I am receiving a fair trial."

In any case, Curiel is not Mexican; he was born in Indiana. But the issue for Trump did not seem to be Curiel's citizenship but his ethnicity. Later in the week, Trump also suggested that a Muslim judge might not be able to be fair to him, either.

At the federal level, white, non-Hispanic judges are less and less prevalent these days. Recent presidents — and Obama in particular — have created a judiciary that looks more like the American people racially and ethnically. (We couldn't find data on judges' religions.)

America's District Court judges are still disproportionately white men, but the ratios have been shifting the past few decades.

As of March 2014, just over one-quarter of the 673 U.S. District Court judges were nonwhite (compared to 38 percent of the U.S. population), according to a Congressional Research Service paper. That includes 10 percent who were Hispanic (compared to 17 percent of the population) and 12.5 percent who were African-American (close to their 13.2 percent share of the total U.S. population).

There is also a wide gender gap: 31.8 percent of active District Court judges were women as of March 2014 (women make up just over half of the U.S. population).

Looking to the next level of the judiciary, the 179 judges on circuit courts of appeal likewise include a disproportionate number of whites and men: nearly 68 percent were men as of March 2014, and 76.5 percent were white.

The share of nonwhite District Court appointees has generally increased since the 1980s, and as Wonkblog's Max Ehrenfreud wrote earlier this year, under Obama it has spiked. Curiel is just one of these Obama appointees.

The share of appointees who are women has also climbed. Only 8.3 percent of Ronald Reagan's appointees were women, a share that climbed to 19.6 under Bush, 8.5 under Clinton and 20.7 under George W. Bush. Obama then doubled that, to 41.2 percent (as of the end of the 113th Congress, in January 2015).

That means the share of appointees who are white men has fallen considerably, from 84.8 percent under Reagan to 38.4 percent under Obama.

These numbers do not represent all thejudges in America, as there are thousands more at the state and local level. But the CRS Report figures indicate that at least at the federal level, judges increasingly look like the people they serve.

Trump isn't the first person to worry about judicial bias, but often those concerns are are about white judges' potential bias against minorities — not the other way around. Indeed, if Trump believes Curiel would be biased against him because of Curiel's ethnicity, by the same reasoning one might assume that a different judge of any race or ethnicity — including a white judge — could be biased in Trump's favor.

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