In May 2016, presumptive Republican presidential nominee Donald Trump released a list of 11 judges he would consider for appointment to the Supreme Court if he made it to the White House. Despite his front-runner status at that late stage of the Republican primaries, the list was not an attempt to pivot toward a general election audience by advancing moderate judicial nominees. Instead, the list, mainly cribbed from a Heritage Foundation cheat sheet of hard-core conservative nominees, was intended to shore up Trump’s bona fides in conservative circles.
The move largely worked. Some right-wing commentators worried that he wouldn’t follow through; Ed Whelan and Erick Erickson were quoted in The New York Times noting the lack of trust they had in candidate Trump—more proof that 2016 was a lifetime ago. But the conservative legal and political establishments were generally satisfied that a President Trump would deliver when it came to pushing the Republican agenda on the Supreme Court.
And so he has. While neither of Trump’s two Supreme Court appointees, Neil Gorsuch and alleged attempted rapist Brett Kavanaugh, was on that initial list, Gorsuch is even more conservative and Kavanaugh more of a partisan hack than Republicans could have reasonably hoped for in May 2016. If Trump gets another pick for the court, the conservative takeover will be complete.
Could somebody please text the Democrats about this?
You would think the Democrats running for president might at least mention this threat. There is not a program, policy, right, or ideal Democrats allegedly care about that can survive additional conservative judges and justices. They will frustrate climate change proposals and gun reform. They will limit access to health care, especially for women. They’ll gut the few worker’s rights that still exist. They will greenlight discrimination against people of color and the LGBTQ community. The police will never be held accountable for murder. There is simply no issue you care about that Republicans cannot destroy through the courts.
Yet so far in the 2020 primaries, it doesn’t appear that anybody has taken the question of Supreme Court appointments seriously. Joe Biden has suggested he’d be open to renominating Merrick Garland; Pete Buttigieg has had nice things to say about retired justice Anthony Kennedy, a Reagan appointee whose strong record on gay rights cannot overshadow his votes to allow unfettered money in politics, authorize Trump’s Muslim ban, and hand the presidency to George W. Bush. Bernie Sanders says he wants to nominate justices like Ruth Bader Ginsburg—which would be cool if she could be cloned, but since she can’t, we don’t know if he likes RBG’s actual jurisprudence or just her reputation. Elizabeth Warren could probably tell us how she’s going to reform the petty cash lockbox at the Interior Department’s Office of Surface Mining Reclamation and Enforcement, but she has yet to offer any nominations for the third branch of government.
Instead of making the Supreme Court a campaign issue that could rally the base and bring over independents who also think the Republican pro-death, pro-gun, pro-bigotry, anti-choice judges are a little extreme, the Democrats running for president once again seem committed to running away from making the court a galvanizing campaign issue. Perhaps they remain too afraid of the Republican hordes—who already know how crucial the Supreme Court is to usher in their white supremacist theocracy—to offer a vision of what a progressive jurisprudence looks like.
It doesn’t have to be this way. The Democratic bench of potential judicial nominees is every bit as deep as the one Trump floated in 2016, with the advantage that the liberal bench isn’t as garishly white as a NASCAR infield. Alliance for Justice recently created a Building the Bench initiative to recruit candidates for federal courts. Demand Justice, a group co-founded by Hillary Clinton’s 2016 press secretary Brian Fallon and Obama Supreme Court vetter Christopher Kang, has developed a full list of potential Democratic nominees for the Supreme Court. It’s a diverse list of academics, state attorneys general, and progressive district attorneys, including Sherrilyn Ifill, president of the NAACP Legal Defense and Education Fund; Dale Ho, director of the ACLU’s voting rights project; and Larry Krasner, Philadelphia’s decarceral district attorney. These people should be the stars Democrats put forward as an antidote to what Mitch McConnell has wrought.
And yet this list has been ignored by the Democrats running for president. Republicans are proud of their most politicized judicial picks. Senator Lindsey Graham’s Twitter picture features him literally standing by Kavanaugh. But Democrats run from the courts, living in constant fear of the white Midwestern voter who clings to his guns and religion.
This is a profound error. When I asked Fallon why his group thinks it’s so important for Democratic candidates to make progressive judicial appointments an issue now, during the primaries, he answered, “Presidential primaries are how the party takes stock of itself and sets its direction for the medium-term future, so we ought not let this once-every-four-years window go to waste.” He also pointed out that few of the big ideas being advanced by the candidates are achievable without at least tacit Supreme Court consent, so talking about the policies and not their plans to reshape the courts is disingenuous.
When it comes to judicial nominees, progressives have spent 30 years ceding intellectual and political ground to conservatives. They don’t fight for the 14th Amendment, which guarantees due process and equal protection, the way conservatives fight for the Second Amendment’s alleged promise of mutually assured destruction. Their billionaires don’t try to buy the courts, as conservative billionaires have been trying to do for a generation. And while the GOP tells its supporters to vote against their own economic interests because the party will put forward conservative judges to fight their culture war, the Democratic messaging seems to be “We will totally fight for the rights of women, gays, and minorities. After we win. We promise.”
But Democratic voters are ready for this fight—now. They showed up to protest the Kavanaugh nomination: remember, it was a voter who argued with Jeff Flake in an elevator, not an elected official. People can be inspired to fight for their rights.
Democrats have tried to avoid angering white working-class voters by ignoring the centrality of the courts. Appeasement hasn’t worked. Maybe it’s time to try fighting for something instead.