US nominates its first African-American female judge, while Australia remains entirely colourless

During the 2020 presidential campaign, Biden announced his intention to nominate an African-American woman when a vacancy opened up. On his first day in office, he signed an executive order committing the administration to policies advancing equity, civil rights, racial justice and equal opportunity. He asked staffers to nominate culturally diverse lawyers from all walks of professional life to fill the vacancy created by departing justice Stephen Breyer, and other vacancies on the appellate Federal Circuit Courts and the trial District Courts.

Announcing Jackson's nomination, the White House said: "President Biden sought a candidate with exceptional credentials, unimpeachable character, and unwavering dedication to the rule of law. He also sought a nominee much like Justice Breyer - who is wise, pragmatic, and has a deep understanding of the constitution as an enduring charter of liberty. And the President sought an individual who is committed to equal justice under the law and who understands the profound impact that the Supreme Court's decisions have on the lives of the American people."

Jackson was born in Washington, D.C. and grew up in Miami, Florida. Her parents attended segregated primary schools in the south, then attended historically black colleges and universities. Jackson graduated magna cum laude from Harvard College, then attended Harvard Law School, where she graduated cum laude and was an editor of the Harvard Law Review. She was a former clerk for Justice Breyer.

In 2013, Jackson was appointed by President Barack Obama as a district judge on the United States District Court for the District of Columbia. Last year Biden appointed Jackson to the highly influential Court of Appeals for the District of Columbia, which presides over Washington, D.C. Jackson has worked as a public defender representing low-income criminal appellants. She was also vice-chair of the United States Sentencing Commission. Jackson joins Justice Sonia Sotomayor, appointed by President Obama, the only Latinx on the bench, and until Jackson, the only woman of colour to serve on the Supreme Court.

Jackson's nomination is part of a string of recent diverse appointees. Last year Biden secured the confirmation of two other African-American women - Candace Jackson- Akiwumi to the Court of Appeals for the seventh circuit which serves the districts of Illinois, Indiana and Wisconsin, and Tiffany Cunningham to the Court of Appeals for the Federal Circuit, which has national jurisdiction over a range of areas including intellectual property. Only 11 African-American women have been appointed to fill 838 vacancies on the federal courts since 1789.

The same month, Biden secured the confirmation to the District Court of Zahid Quraishi, a son of Pakistani immigrants and the first Muslim federal judge in United States history. Also, Jennifer Sung was appointed to the California-based Court of Appeals for the Ninth Circuit, as the first Asian-American Pacific Islander to serve on that court.

Biden has secured the confirmation of more African Americans to the federal courts than all but one other president, and at a pace that is unprecedented in United States history.

Biden has equally ambitious plans for appointees to the trial District Courts, including Shalina Kumar being appointed to serve on the United States District Court for the District of Michigan. She is the first federal judge of south-Asian descent to serve on that court. Patricia Tolliver Giles has been appointed to the District Court for the District of Virginia. Giles is only the second woman of colour to serve on the Virginia federal bench. Armando Bonilla was this month appointed to the Court of Federal Claims. He is the first Hispanic judge to serve on that court.

What is remarkable about these appointments is not just their colour, but the diversity of experience they bring to the bench. In appointing Jackson and all the others, Biden has departed from the practice in the United States and in Australia of appointing only attorneys or prosecutors, favouring civil rights lawyers, public defenders and others working within the broader justice system.The Biden administration actively consulted with a broad range of organisations, including civil rights bodies, and sought nominees from diverse cultures and backgrounds.

Jackson now faces the Senate confirmation process. Biden attracted the scorn of many in the Republican Party when he indicated that he intended to appoint an African-American woman. In a January podcast titled "Only black women need apply", Senator Ted Cruz said that the promise of a black appointment was "offensive". Senator Roger Wicker described any black women who filled the role as "beneficiar[ies]" of affirmative action. The response since the nomination has been a little more balanced. However, Jackson is likely to face difficult questions from Republicans - questions on race and her role as a public defender, like she faced during her appeals court confirmation.

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Unlike the United States, consultation on judicial appointees in Australia is very limited, usually with the bar councils from which almost all judges are drawn - although no one can really know, as the process is not transparent at all.

That's why no one of colour has ever been appointed to Australia's highest court (the High Court) in its almost 120-year history, and only a handful of people of colour have been appointed to Australia's federal and state superior courts. And you won't find many, if any, civil rights or legal aid lawyers, academics or government lawyers among them, like you'll find in the current crop of United States nominees.

Australian courts comprise mostly white male judges who were previously advocates, very different from the diverse cultural and professional backgrounds which comprise the Biden appointments. This is despite a significant number of culturally diverse Australians graduating from law schools and practising in law firms, the corporate world, government and academia. Australia also does not collect meaningful statistics on the cultural composition of our judges, as occurs in the United States and the United Kingdom, so it is difficult to address this lack of diversity.

Biden was at pains to point out his nominee's immense qualifications, to counter the opposition to her nomination. Perhaps that opposition is to be expected when the first African-American woman is nominated to the nation's highest court. It only highlights how far the world still has to go before nominations like Jackson's barely attract the colour attention this one has.

In Australia's case, we are decades behind the United States and other developed countries in even beginning that conversation, let alone taking the concrete action we have now seen in the United States. Australia's position is a travesty for a liberal democracy.