Trump thinks Muslim judges would be biased against him – but there are none

Donald Trump’s remarks heighten concerns that he could undo Obama’s efforts to diversify courts and besmirch the judiciary’s ‘fair’ reputation if elected

When Donald Trump remarked that “it’s possible” Muslim judges would be biased against him, he probably did not know how many Muslim judges there are in America’s federal courts. The number might surprise other people too. It is none.

Among Barack Obama’s judiciary nominees, about 43% have been women and 36% non-white.

This is despite a record-breaking push by Barack Obama to diversify a judiciary long dominated by straight white men. There are more female, black, Latino and gay judges than ever before, but the absolute absence of Muslims from the bench illustrates the scale of the deficit he inherited. And some observers fear that a Trump presidency could undo years of hard-won progress.

The Republican presumptive nominee has been roundly condemned for his comments not only about Muslims but accusations of bias levelled at Gonzalo Curiel, an American judge of Mexican heritage who allowed the release of some unflattering documents from Trump University.

“It’s very damaging to the entire perception of how the judiciary is viewed,” said Christopher Kang, a former deputy assistant and deputy counsel to Obama. “The judiciary is, and should be seen as, a fair and independent branch of government, and I think that means those sorts of broad, frankly racist characterisations just do damage to the institution.”

There are currently 785 federal judges, according to the Federal Judicial Center, with about 90 vacancies outstanding. They consist of 520 men and 265 women. The racial breakdown is 107 African Americans, 80 Hispanics, 25 Asian American Pacific Islanders, one Native American and 579 whites. (Some judges identify as more than one race.)

Religion is not measured in official figures but several non-government organisations confirmed that there are no federal judges who identify as Muslim. It is estimated that Muslims make up about 1% of the US population.

Farhana Khera, executive director of the group Muslim Advocates, said: “Our nation’s justice system is strengthened when judges reflect the rich diversity of America. There are a number of American Muslims who serve or have served with distinction as judges at the state level, and it is time for a Muslim to be nominated to the federal judiciary.”

Obama is widely praised for doing more than any other president, perhaps all other presidents combined, to make the judiciary more representative of the nation. Some 43% of his nominees have been women and 36% non-white, compared with George W Bush’s tallies of 22% and 18% respectively and Ronald Reagan’s of 8% and 6%.

Kang, who was in charge of the selection, vetting and confirmation of the president’s judicial nominees, said: “I think the time was right. There was bipartisan support from Democrats and Republicans to seek to increase the diversity of the judiciary. I think the momentum is there.”
But he acknowledged: “We never asked about religion. The constitution forbids a religious test. But it’s not something that’s easily categorised either.

“It’s hard to go out and recruit in that manner for religious diversity. I think that what we did across the board was encourage applicants of all backgrounds. We talk about race and gender because they’re easier to quantify because there are statistics, but one of the other things the president set out to do was encourage lawyers of different legal backgrounds to apply as well.”

Eleven of Obama’s confirmed judges have been openly gay or lesbian. Before 2009 there was only one, a Bill Clinton appointment. Todd Hughes is the first openly gay circuit judge in the country.
Kang said: “It’s not as if we sort of set out to identify and find more openly gay candidates. As you do greater outreach in terms of diversity generally, more people will apply, and I think the same is probably true of a Muslim candidate.

Activists believe that Obama has shifted the conversation. Kyle Barry, director of justice programmes at the Alliance for Justice Action Campaign, described his effort as “historic” and said:
“He was starting from a place where our courts were very much behind in terms of diversity. There is absolutely more work to be done.”

Yet that has not stopped the Republican Congress moving to frustrate Obama. It goes way beyond the current standoff over Merrick Garland’s nomination to the supreme court. In lower courts, around 10% of judge positions are unfilled.

Lena Zwarensteyn, director of strategic engagement at the American Constitution Society for Law and Policy, said: “There has been abysmal obstruction by the Senate majority in not confirming judges. The number of vacancies has skyrocketed. They are just not doing their job.”

Nominees currently being blocked for circuit court vacancies include Myra Selby, who would be the first woman from Indiana and first African American from Indiana on the seventh circuit, Rebecca Haywood, who would be the first African American woman on the third circuit, Lisabeth Hughes, who would be the first woman from Kentucky on the sixth circuit, and Jennifer Puhl, nominated for the eighth circuit, who would be the first woman on a federal court in North Dakota.

Republicans appear to be running down the clock as Obama nears the end of his second term.
Once unthinkable, the emergence of Trump – who has vowed to ban Muslims from entering the country – as the nominee of a major party fills champions of diversity with foreboding. Vincent Eng, a Washington lobbyist, said: “It’s incredibly troubling. It would be a major step backwards in the work done to diversify the judiciary to reflect the nation they represent.”



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