To Dismantle White Supremacy, We Need to Fix Our Judiciary

By Lena Zwarensteyn

The past four years of the Trump administration and the white supremacy that fueled it to power have tested many of us. And on January 6, we experienced what many feared and foresaw: a white supremacist, anti-Semitic attack against the U.S. Capitol incited by the president of the United States. This has shaken the very core of our democracy and exposed the flaws in our system of justice. Far too many Black and Brown people have been killed and abused by law enforcement for mere suspicion of law violations. Yet violent insurrectionists who attempted to overturn the will of the voters, invaded the center of our government, and threatened the lives of lawmakers received gentle treatment at the hands of police.

This system of justice, founded predominantly by white men who enslaved Black people, was constructed to protect white supremacy and the wealthy and powerful. The Constitution and many of our laws were written to defend these same interests. And our judiciary, which interprets these laws and the Constitution, was founded on and far too often perpetuates these same interests at the expense of everyone else.

That is why the civil rights community is focused on building a fair and just federal judiciary that gives real meaning to the phrase “equal justice under law.” The Leadership Conference on Civil and Human Rights coalition and our Fair Courts Task Force is calling on the Biden-Harris administration and the Senate to urgently prioritize making our federal judiciary more fair and just for all of us, including and especially for Black and Brown communities.

And that means working expeditiously to consider and confirm judicial nominees who are fully committed to upholding civil and human rights.

The start of the Biden-Harris administration and the 117th Congress presents an opportunity to build better institutions and improve our democracy and the lives of people in this country. We need a holistic approach to fixing our democracy, which includes federal courts and the judges who make decisions every day that impact some of the most important parts of our lives including access to health care, economic justice, voting rights, and so much more.

People have fought and organized for decades to push our laws and institutions to reflect, represent, include, and serve everyone in this country, including Black, Brown, and Asian American and Pacific Islander communities, women, people with disabilities, LGBTQ people, people of faith and no faith, and other people our systems have marginalized. And because of these tireless efforts, the civil and human rights movement has achieved significant progress. This movement led to landmark civil rights achievements such as Brown v. Board of Education, which ended legal apartheid in public education thanks to the efforts of civil rights advocates and the incredible work of Thurgood Marshall and Constance Baker Motley at the NAACP LDF; the passage of the Voting Rights Act of 1965, which expanded the right to vote and access to voting for Black citizens thanks to the tireless work of civil rights leaders despite constant private and state-sanctioned violence; and the recognition of marriage equality in Obergefell v. Hodges thanks to the LGBTQ people and organizations who challenged these laws in courtrooms across the country. None of these victories was easily won. They are the result of people working to make America a more perfect union.

But we also know that as more people have seen their rights finally recognized, progress has stoked backlash. When the power of people grows, those whose interests are served by white supremacy, anti-Semitism, sexism, homophobia, and other forces that marginalize people lash out. For the past few decades, the conservative right has intentionally and deliberately planned to roll back and prevent future progress. This is painfully clear from the efforts that Trump was able to seize on in transforming the federal judiciary. For years, small, ultra-conservative legal circles built inroads to powerful Republicans like Senator Mitch McConnell. They saw an opportunity for the ultimate power grab when Trump was campaigning for president and needed to shore up his conservative “bona fides.” Trump relied on a Supreme Court shortlist compiled by the Federalist Society and Heritage Foundation, and he filled the judiciary with individuals whose records reflect their hostility to our most basic civil and human rights.

When it comes to the Trump administration’s transformation of our judicial system, it can seem far removed from the white supremacist violence we have witnessed. But 25 percent of our federal judges were selected by Trump and confirmed by the McConnell-controlled Senate; for circuit court judges, it’s 30 percent. Unsurprising but appalling nonetheless, more than 85 percent of these judges are white and approximately 75 percent are male. By virtue of who they have selected precisely because of their anti-civil rights work, Trump and his allies have tried to entrench the power that serves white supremacy, the wealthy, and the powerful. And today, the impact Trump’s three Supreme Court justices and additional 231 lifetime federal judges have had will have on our courts and our rights will reverberate for decades.

That’s why judicial nominations must be an immediate and enduring priority of the 117th Congress. President Biden must select and the Senate must confirm judicial nominees who have a demonstrated commitment to civil and human rights and a progressive vision of the law and the Constitution, and who are fair-minded and reflective and representative of the vast and rich diversity of our country. This diversity includes race, sex, gender identity, sexual orientation, disability status, ethnicity, national origin, socio-economic status, and experiential and professional background.

There are already immediate judicial vacancies to fill. These seats must be filled with judges who will work to protect and recognize the rights of everyday people over corporations and wealthy special interests. Our federal courts must recognize and uphold all of our rights, including workers’ rights, immigrant rights, voting rights, disability rights, health care access, abortion rights, LGBTQ+ rights, separation of church and state, freedom from discrimination based on religion, and more. Our courts have perpetuated white supremacy for too many generations. By putting diverse civil rights champions in the judiciary, we can work toward the promise of equal justice under law.

Lena Zwarensteyn is the senior director of the fair courts campaign at The Leadership Conference on Civil and Human Rights.