Trump-Appointed Judge Josh Divine Identified His Race as “Other.” It's Worth Considering Why.
It could be nothing. Or the truth could be disturbing for a lifetime federal judge.
In January 2024, President Joe Biden announced the nomination of civil rights lawyer Amir Ali to serve on the federal district court in Washington, DC. When he was confirmed later that year, Judge Ali became the first Arab American and first Muslim lifetime judge to ever serve on the court.
To capture his identity, the Federal Judicial Center (FJC) — the research and education agency of the U.S. government’s judicial branch — created a Middle Eastern/North African category in its database of biographical information about federal judges. That’s because, according to practice, judicial nominees self-report their race/ethnicity to the Department of Justice’s Office of Legal Policy (OLP), and then OLP forwards that information along. As an associate historian at FJC told me via email, “In order to stay faithful to what the judges are reporting, we need to create new categories when something isn’t already listed.”
In addition to Middle Eastern/North African, several new categories have been added to FJC’s directory in recent years to accommodate the ways that federal judges identify themselves and describe their racial and ethnic backgrounds.
During the first Trump administration:
In 2019, Ada Brown’s confirmation led to the creation of “African American/American Indian,” and Biden appointee Lydia Kay Griggsby later joined that list.
In 2020, Franklin Valderrama’s confirmation led to the creation of “Afro-Latino/Hispanic.”
In 2020, Hala Jarbou’s confirmation led to the creation of “Chaldean.”
During the Biden administration:
In 2021, Zahid Quraishi’s confirmation led to the creation of “Pakistani.”
In 2021, Angel Kelley’s confirmation led to the creation of “African American/Asian American,” and two other Biden appointees — Micah Smith and Dena Coggins — joined that list.
In 2022, Mia Perez’s confirmation led to the creation of “African American/Asian American/Hispanic.”
In 2022, Robert Huie’s confirmation led to the creation of “Asian American/Hispanic/White.”
In 2022, Roopali Desai’s confirmation led to the creation of “Asian American/South Asian American.”
In 2023, Maria Kahn’s confirmation led to the creation of “Portuguese.”
In 2023, Cindy Chung’s confirmation led to the creation of “Asian American/Korean American.”
In 2023, Shanlyn Park’s confirmation led to the creation of “Pacific Islander.”
In 2024, Leon Schydlower’s confirmation led to the creation of “Cuban American/White.”
In 2024, Sparkle Sooknanan’s confirmation led to the creation of “Asian American/Caribbean American.”
And in 2024, Jeanette Vargas’ confirmation led to the creation of “Hispanic/Latino,” and she was joined by Biden appointee Cynthia Valenzuela and then Trump appointee Edward Artau this year.
More than half of the current race/ethnicity categories listed by FJC (16 of 28) were created since 2019, highlighting the agency’s openness to adding new identities that align with the nuanced ways that people understand and describe their race/ethnicity. When OLP sends them a nominee’s form with a category that doesn’t yet exist, they add it.
That’s what they did when Trump appointee Josh Divine, confirmed in July to the U.S. District Courts for the Eastern and Western Districts of Missouri, listed his race as “Other” on his form “with no further information,” according to FJC. Of all federal judges in American history, he is the only one listed under the “Other” category in their database. Why?
Judge Divine was fiercely opposed by civil rights organizations because of his deep record of hostility to reproductive rights, LGBTQ+ equality, and student loan borrowers, in addition to a disturbing collection of columns he wrote as a student journalist at the University of Northern Colorado (he’s the one who called for bringing back literacy tests for voters). While college writings are often dismissed as from another, long-ago era, Divine graduated from college in 2012 and from law school in 2016, and he lacks what would normally be considered the requisite legal experience to serve as a lifetime federal judge.
One of his columns commented on race categories specifically. According to Balls and Strikes:
In a 2012 column about the prosecution of George Zimmerman for the killing of Trayvon Martin, a Black teenager in Florida, Divine criticized “the media” for identifying Zimmerman as “white Hispanic,” which he described as “a ploy toward branding the situation as racist profiling.” Divine was also perplexed by the term “white Hispanic” itself: “What does that even mean?” he asked. “Is President Obama a white black man? What about a Halfrican-American?”
Earlier this year, just a few weeks before his nomination, he wrote a sarcastic post on X in response to a story about DEI policies at Harvard, saying “If only there were a recent case from the Supreme Court that might give folks guidance on whether this is legal. They could even put ‘Harvard’ in the case caption to make it super clear.” The story was about a “pervasive pattern of racial discrimination at Harvard Law Review” and bemoaned that only one white person since 2018 has written the foreword to the publication’s Supreme Court issue.
Divine’s decision to comment on this issue is concerning, as is the Trump administration’s focus on ending DEI policies and practices. As a candidate last year, Trump vowed to focus on “anti-white” racism if elected — and he has done so. One of his day one executive orders sought to abolish DEI, reverse the fundamental meaning of civil rights, and declare that equal opportunity programs in America are actually discriminatory. On Attorney General Pam Bondi’s first day on the job, she issued a directive titled “Ending Illegal DEI and DEIA Discrimination and Preferences,” which says that “To fulfill the Nation’s promise of equality for all Americans, the Department of Justice’s Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.”
The Civil Rights Division is now led by Harmeet Dhillon. At her confirmation hearing in February, Senator Eric Schmitt, R. Mo., asked Dhillon about reverse racism. Her responses were terrifying for an individual now charged with enforcing federal civil rights laws — and so were Senator Schmitt’s questions and comments. He said that “we’ve got to root out this wokeism and this discrimination that’s been under the cover — this cultural Marxism of DEI.” He also said that “The Left views this, again, as cultural Marxism, a way to divide the room by race, and it’s tearing this country apart.” Josh Divine worked with Senator Schmitt when Schmitt was Missouri’s attorney general. He applauded Divine’s confirmation, saying that he’ll be “among our nation’s best federal judges.”
In response to written questions from Ranking Member Dick Durbin and Senator Cory Booker about the importance and value of judicial diversity, Divine affirmed that “nobody should ever be excluded from the opportunity to serve as a judge based on race, ethnicity, sex, religion, or any other protected characteristic.” Still, when reporting his own race, he described it as “Other.”
There are valid and complex reasons for someone wishing to self-identify this way. But given Divine’s record and previous writings — and given that he was nominated by Trump to carry out the administration’s white supremacist, anti-DEI agenda from the bench — we should question why Divine did this. If he wrote “Other” as a rejection of race/ethnicity categories as too “woke,” or because he possesses a racial colorblindness ideology, or because he doesn’t value the utility of race and ethnicity data and sought to skew it — then that would be alarming. And it is relevant when evaluating his fitness for service as a federal judge for decades to come and should be scrutinized if any president attempts to elevate him to the Eighth Circuit or U.S. Supreme Court.
All people who appear before Judge Divine in his Missouri courtrooms — including the more than 1 million people of color who reside in the state — should be able to trust that he will fairly hear their case, including those related to race. As it stands, they can’t. And that’s devastating.