Biden's first pick for Southern appeals court fails to address racial diversity

President Joe Biden's judicial nominees have included a record number of people of color, breaking new ground on courts in Virginia and other states. But his first choice to fill a vacancy on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, which hears cases from that state as well as the Carolinas, Maryland, and West Virginia, has raised concerns among advocates for judicial diversity as it won't bring any to a court that does not resemble the population it serves.

On June 30, Biden nominated Virginia Solicitor General Toby Heytens to the court — Biden's first white appellate court nominee. A former professor at the University of Virginia's law school, Heytens was appointed solicitor general in 2018 by the state attorney general. In that role, he argued at the 4th Circuit as the lawyer for Virginia election officials who sued the legislature over racially gerrymandered election districts.

The 4th Circuit includes 15 judges, and only two are Black. Yet people of color make up 38% of the circuit's population — nearly twice the share of judges of color on the court, which also has one Latinx judge. President Donald Trump's three appointees to the 4th Circuit were white, and they replaced two Black judges, who are now semi-retired. The court, like Trump's appointees overall, is also overwhelmingly male.

Nationwide, 84% of Trump's judicial appointees were white. Trump filled many seats on Southern courts that the Republican-led Senate refused to fill with Obama's nominees. So far this century, only one Black judge has been confirmed to the two appellate courts in the Deep South, the 5th and 11th U.S. Circuit Courts of Appeals. The population in the two circuits, which include Alabama, Georgia, Florida, Louisiana, Mississippi, and Texas, is around one-fifth Black. And each court has at least one upcoming vacancy that Biden will fill. 

The Biden administration called on senators to recommend diverse judicial nominees. But to date the president hasn't nominated any judges in states with two Republican senators, which includes every Southern state except Georgia, Virginia, and West Virginia. The administration has moved quickly in states with two Democratic senators. 

The Biden administration chose Heytens from a slate of three potential nominees recommended by Virginia's two senators, Democrats Tim Kaine and Mark Warner. The senators included a Black judge, Arenda Wright Allen, on their list of three, but observers noted that she was 60 years old. Professor Josh Blackman of the South Texas College of Law Houston, a conservative, pointed out that Heytens was younger than Allen and the other potential nominee.

"It seemed to me that Warner and Kaine saved face by picking a diverse slate, but really wanted Biden to pick Heytens," Blackman said in a blog post.

The vacancy arose soon after Biden took office, and the NAACP made it clear to both Virginia senators that racial and ethnic diversity must be a priority. All of the Black judges on the 4th, 5th, and 11th Circuits are more than 60 years old. Leslie Proll, an attorney who advises the NAACP on nominations, told Facing South that "it's terribly important that judges of color are nominated to Southern circuits. We need a new generation of racially diverse judges."

The two Black judges now on the 4th Circuit — Roger Gregory and James Wynn — faced resistance from racist Sen. Jesse Helms of North Carolina, who blocked Wynn when he was nominated by President Bill Clinton in the 1990s. Wynn was renominated by President Barack Obama and confirmed in 2010. Gregory was appointed by Clinton in the final days of his tenure as a "recess" appointment, which doesn't require Senate approval. Gregory was reappointed by a Republican president and finally confirmed in 2001, with only one senator — Trent Lott, a Mississippi Republican — voting against him. 

In recent years, Gregory and Wynn played crucial roles in voting rights cases out of North Carolina. Gregory wrote the court's decision to strike down racially gerrymandered congressional districts in 2016. Wynn was on the panel of judges that struck down a 2013 North Carolina voting law, which has become the template for many of the current voter suppression bills being passed in other states. During oral arguments, Wynn grilled the legislature's attorney, Thomas Farr, about why the legislators crafting the law's voter ID requirement excluded identifications that they knew Black people were less likely to have. The court concluded that lawmakers had targeted Black voters "with almost surgical precision" and struck down several provisions of the wide-ranging law. 

This year, as legislatures in the South pass new voter suppression laws, Biden is nominating diverse judges with experience as public defenders and civil rights attorneys in other parts of the country. For example, he recently nominated two longtime voting rights attorneys, Dale Ho and Myrna Perez, to a New York-based appeals court. Sherrilyn Ifill, head of the NAACP Legal Defense and Education Fund, noted that the nominees will bring racial and ethnic diversity, as well as voting rights experience, which she called "a critical need as complex challenges involving voter suppression make their way through the federal courts."