Maintaining a Diverse Federal Judiciary

David W. Marshall

It is rare for a sitting U.S. president to step aside and not run for reelection. The magnitude of this type of decision cannot be easy for any individual to make, especially when faced with heavy personal and political consequences. Lyndon Johnson made the tough decision in 1968, and Joe Biden did the same in 2024.

Both leaders were seasoned elder statesmen during their time in the U.S. Senate. They served as vice presidents, eventually becoming U.S. Presidents. Johnson and Biden achieved major legislative achievements as presidents stemming from their dealmaking experience as Senate lawmakers.

Both leaders fought for interests critical to the Black community during their respective terms in the White House. The policy continuity question must be asked whenever there is a change in the White House from one administration to the next. Presidents are human beings who evolve personally and politically over time, even throughout their terms in office.

This often occurs based on the wise counsel and advice they may receive within their administration or from the community at large. Whenever we cast our ballots in presidential elections, we must be mindful that a president’s successor may not champion the positive gains made during the previous administration.

Despite initial differences, Frederick Douglass and Abraham Lincoln forged a relationship throughout the Civil War based on a shared vision. Fifteen years after Lincoln’s death, Douglass described him as “one of the noblest, wisest, and best men I ever knew.” Lincoln was willing to eventually listen to a Black man despite being a product of his past environment. Lincoln’s assassination just after starting his second term prevented the continuity of racial awareness Lincoln received from Douglass when Vice President Andrew Johnson took over.

As president, Johnson was unexpectedly tasked with the job of implementing Reconstruction. He favored a lenient version of Reconstruction and state control over voting rights while openly opposing the 14th Amendment. Although Johnson supported the end of slavery, he was a white supremacist. “This is a country for white men, and by God, as long as I am President, it shall be a government for white men,” he wrote in 1866. The fight for full citizenship for Black Americans took a major step backward due to the succeeding Johnson administration’s unwillingness to embrace the vision shared by Douglass and Lincoln.

Where Lincoln had Douglass, Lyndon Johnson had Martin Luther King. Lyndon Johnson was a Southern racist who often used the N-word and was another product of his environment. With two decades in Congress, Johnson was a reliable member of the Southern bloc, helping to stonewall civil rights legislation. However, with the influence of Martin Luther King and other civil rights activists, Johnson became the greatest champion of racial equality to occupy the White House since Lincoln. Johnson also made history by nominating former NAACP Chief Counsel Thurgood Marshall as the first Black to serve as Associate Justice of the U.S. Supreme Court.

With all the excitement surrounding Vice President Kamala Harris’s campaign, nothing should be taken for granted concerning her election. It will be a tough election to win. The November election is a battle for the future of our nation. Therefore, the Democrats must take a page out of Mitch McConnell’s playbook when it comes to the federal judiciary. McConnell knew that most of the contentious issues in our society would eventually be addressed by the courts.

As Senate majority leader, McConnell strategically held up judicial nominations during the last two years of the Obama administration. When Donald Trump succeeded Obama, Trump was then able to fill the open vacancies with conservative federal judges at an accelerated pace. Trump had more than 100 vacancies in the lower courts, including 17 in the U.S. Court of Appeals.

Where Lyndon Johnson had Martin Luther King in his ear, Joe Biden had Black women activists. In an open letter to Biden, more than 200 Black women called for him to select a Black woman as his running mate. He gave us Kamala Harris and fulfilled his promise to diversify the federal judiciary.

Biden, like Mitch McConnell, intimately understood how the Senate process works. According to The Leadership Conference on Civil and Human Rights, President Biden has appointed 59 Black judges, including 38 Black women now serving lifetime appointments on the federal bench. More than 40% of these judges come to the bench with significant experience protecting and advancing civil and human rights.

President Biden has appointed more Black lifetime judges than any previous president in a single term. No president has ever appointed a slate of judges consisting mostly of women or racial and ethnic minorities. This includes the first Black woman appointed to the U.S. Supreme Court –Justice Ketanji Brown Jackson. Before President Biden, only eight Black women had ever served at this level of our federal judiciary.

We have an opportunity with the election of Kamala Harris to continue the work Joe Biden started in diversifying the federal judiciary. It will also require keeping control of the Senate. As America went from President Lincoln, who listened and acted, to President Andrew Johnson, who stuck with the white supremacist program, the nation didn’t have a choice in Lincoln’s death. In November, we all have a choice.

David W. Marshall is the founder of the faith-based organization TRB: The Reconciled Body and author of the book God Bless Our Divided America.