Last month, Sen. Josh Hawley (R-MO) sparred with Loren AliKhan, a pending nominee for the U.S. District Court for the District of Columbia, over her partisan application of the law . While serving as the solicitor general for Washington, D.C., she argued that religious services posed a greater risk for COVID-19 transmission than protests to defund the police.

AliKhan is one of nearly 200 nominees President Joe Biden has chosen to serve on federal courts, most of whom belong to favored identity groups and many of whom view the judiciary as a tool for activism and social change rather than stability. The exchange between Hawley and AliKhan justified a growing concern: Biden's judicial nomination strategy prioritizes identity and ideology over the rule of law.

The Biden administration’s prioritization of identity politics during the selection process far outstrips his Democratic predecessor, who previously held the record for the most diverse court nominees. According to a recent report from the Congressional Research Service, 75% of Biden’s circuit court appointees are female, compared to 44% under former President Barack Obama. Similarly, 42.9% of Biden’s circuit court appointees are black, far outpacing the 16.4% under the Obama administration.

While media reports often praise Biden for diversifying federal courts, the strong prioritization of race and gender should raise concerns. In any selection process, the more emphasis the decision-maker puts on one criterion, the less he can put on another. The Supreme Court’s recent affirmative action case, for example, concluded that considering race as a major selection criterion resulted in discrimination and prevented well-qualified candidates from receiving fair evaluations.

Yet for the Biden administration, merit has become a secondary consideration in the selection of judges. After nominating Ketanji Brown Jackson to the Supreme Court, the president emphasized that diversity would be his top priority, implying that diversity is needed to bring unique perspectives and beliefs to the bench. But diversity should have little to do with the dispassionate interpretation of the law. Judges are expected to evaluate laws without regard for their own experiences and biases.

Biden’s selection of judges raises another concern: judicial activism. His administration has yielded to calls from liberal nonprofit groups that have urged him to pick judicial nominees with “nontraditional” (that is, activist) backgrounds. Examples include Julie Rikelman, a pro-choice lawyer, and Myrna Perez, a director of the Brennan Center's voting rights program whom Senate Majority Leader Chuck Schumer (D-NY) said will “persuade fellow members of the Second Circuit to the righteousness of the causes that she will follow.”

There is nothing wrong with selecting jurists who are former employees of nonprofit organizations. The problem is the Biden administration’s determination to choose nominees who will bring their activism to the bench and evaluate the law in light of their ideology and personal experiences.

Look no further than Dale Ho, a Biden appointee now serving as a district judge for the Southern District of New York. Ho previously described himself as a “wild-eyed leftist” and urged the Left to “not shy away from articulating an alternative vision of constitutional interpretation to compete with originalism.” “The Court’s greatest decisions under the Fourteenth Amendment … operated from the premise that the lived experience of contemporary Americans informs constitutional decision-making,” Ho said.

What Ho actually has in mind is the “lived experience” of contemporary judges, as those are the people who interpret the Fourteenth Amendment and the rest of the Constitution. He is referring to the “living Constitution,” the theory that the Constitution, the bedrock of America's government, should evolve under the purview of judges in a more liberal direction.

But a Constitution detached from its original meaning and intent loses its value as a restraint on the majoritarian fashions of the day, becoming little more than a vehicle for the ideological preferences of the legal elites. As Justice Elena Kagan said in her confirmation hearing: “Part of [the Framers’] wisdom was that they wrote a Constitution for the ages. … We apply what they said, what they meant to do. So in that sense, we are all originalists.”

The Biden administration’s focus on choosing judicial nominees with ideological agendas and its prioritization of diversity comes with significant consequences. It robs the public of a federal judiciary that consists of the most highly qualified men and women and dispassionately interprets the law without favor for particular causes or parties. Since federal judges serve lifetime appointments, this negative impact on our law and society will continue decades after Biden leaves office.

Rachel Chiu is a resident fellow for competition and regulatory policy at the Committee for Justice, a nonprofit organization that supports the rule of law and constitutionally limited government.