Federal Courts and Nominations

OP-ED: Courting Disaster: Progressive Candidates’ Reticence on Judicial Nominations

The Supreme Court will end its term this week, and before doing so, it will hand down decisions in blockbuster cases that lie at the core of our democracy.  In New York v. the United States Department of Commerce, the Court will decide whether the addition of a citizenship question to the Census violates the Constitution’s Census Clause or other federal law.  In Rucho v. Common Cause and Lamone v. Benisek, the Court will decide whether partisan gerrymandering by the states violates the Constitution’s Elections Clause, Equal Protection Clause, or First Amendment.  More simply, what lies at stake in the Census case is whether an untested question can be added to the Census, threatening to deter participation by immigrants and result in a severely inaccurate count that would affect political power and the allocation of more than $800 billion of federal funding for critical services.  What lies at stake in the partisan gerrymandering cases is whether politicians and political parties will be able to pick their voters, rather than voters being able to pick who represents them.

The nine people who serve on our high court will decide these critical questions.  And in a twist of scheduling fate, these decisions will come down during a week when the first Democratic presidential primary debates take place.

Will progressive candidates for national office be asked about judicial nominations and will these candidates make the federal judiciary a top-tier message? If not now—after more than two years of an Administration that has stacked the third branch of government with judges who threaten the Constitution’s most basic promises—one wonders if they ever will. Now more than ever, the need for America’s judges to uphold the whole Constitution’s text, history, and values—not just the parts conservatives like—and to ensure that no one is above the law should be clear to everyone.

On paper at least, there are reasons to think progressive candidates will get it right this time.

In a seemingly unprecedented historical turn, the presidential race is full of candidates uniquely qualified to discuss the importance of our courts and the judges who fill them. Three sitting members of the Senate Judiciary Committee are formally running for president. Senators Cory Booker, Kamala Harris, and Amy Klobuchar entered the field following bruising battles against the Gorsuch and Kavanaugh Supreme Court nominations. In addition, former Vice President Joe Biden once chaired the Senate Judiciary Committee and voted for or against no fewer than ten Supreme Court Justices in his Senate career (five of whom still serve). White House contenders from the Senate who are not members of the Judiciary Committee, including Kirsten Gillibrand and Elizabeth Warren, have also engaged prominently in the confirmation struggles of numerous Trump Administration nominees.

Despite these candidates’ qualifications to address this important issue, the judiciary’s critical importance has largely escaped the topline messaging of nearly all their campaigns.  And the problem is not limited to the individuals listed above; it exists across the entire field.  A search of the websites of 23 progressive candidates reveals that no campaign website has a section on judicial nominations, and only 5 websites fleetingly mention judicial nominations.  To be fair, several candidates have spent significant time discussing proposals to structurally reform the Supreme Court; but while that discussion is important and valuable, it’s not quite the same thing as discussing the need for judges who will follow the whole Constitution.  The American people deserve to know not only how many seats would exist on a particular court, but also the kinds of judges each candidate would nominate to fill those seats.

This reticence is hard to comprehend on substantive or political grounds.

It’s as if Brett Kavanaugh’s nomination to the Supreme Court hadn’t concluded just last October—a process that gripped the nation for weeks, featured the powerful testimony of Dr. Christine Blasey Ford, ended with no resolution to a litany of questions, and left a cloud over Justice Kavanaugh and the Court on which he serves. It’s as if Merrick Garland’s nomination to the Supreme Court were a thing of the distant past, rather than a fight that took place in the same year Donald Trump was elected President. With nearly a full year left in his term in 2016, President Obama nominated Judge Garland to replace Justice Scalia on the Supreme Court, only to have Senate Majority Leader Mitch McConnell dishonor the Senate by blocking Garland from even getting a hearing, thereby holding the seat open for President Trump to fill.

And of course, Supreme Court nominations are only part of the story—staffing the lower courts is also vital, and too often remains overlooked. After all, virtually every case that makes it to the Supreme Court begins in those courts. And these courts often make the final decisions on whether people who have been injured can seek redress for their injury and can enjoy the rights and freedoms we cherish under our Constitution. Given the importance of the courts, one would expect progressive campaigns to be making them a major issue. And yet they’re largely not.

From now through November 2020 and beyond, progressives should make America’s courts a top-tier talking point at every single bus stop, diner, grocery store, living room, caucus room, auditorium, and arena they visit.   This means more than simply adding a judicial nominations section to their websites, of course.  It means making the judiciary a part of substantive discussions.  When candidates want to discuss almost any issue, judicial nominations should be invoked as part of those discussions.  Want to discuss how you will protect health care coverage?  What about clean air and water? The right to vote free from discrimination?  Holding corporations accountable? Protecting communities from gun violence? Ensuring the ability to succeed at a job based on workplace performance, not based on who you are or whom you love? Exercising your right to control one’s own medical decisions, including access to contraceptives and abortion?  A serious commitment to these issues cannot be articulated without discussing judges who are faithful to the whole Constitution’s text, history and values.

This means that when candidates discuss ambitious national solutions to national problems, they should discuss nominating judges who understand this federal government role.  Rather than defaulting to conservatives’ warped and cramped vision of federal legislative power, candidates should remind voters that our Constitution was crafted in significant part to correct the failure of the Articles of Confederation, which established a weak, ineffectual national government.  (History backs progressives on this issue; the Constitutional Convention’s Resolution VI, which guided the crafting of Article I’s legislative powers, stated that Congress would have the power “to legislate in all Cases for the general Interests of the Union, and also in those to which the States are separately incompetent . . . .”)  And when talking about nominating judges who respect such landmark decisions like Roe v. Wade, Brown v. Board of Education, and United States v. Windsor, progressives need not be skittish.  It’s not a matter of litmus tests.  It’s about nominating judges who understand the Constitution’s promises.  It’s difficult to fathom an understanding of the Constitution’s Fourteenth Amendment’s liberty guarantees that does not involve its protection of one’s right to make decisions about one’s own body.  Similarly, how can one claim to understand the Equal Protection clause without understanding that it would prevent a system of racial segregation in our nation’s classrooms, or prohibit the federal government from treating some marriages differently from others without good reason?  Candidates need to make these points.

The alternative baffles. Any progressive who ignores the future of our judiciary in a national election, while President Trump speaks about the courts frequently, is committing an unforced error.   And it’s certainly not an error that conservatives commit, as the 2015 and 2016 Republican primary process featured debates and candidates that mentioned judicial nominations often and prominently.

The message is straightforward, and speaks to progressive and other voters where they already are.

If progressive presidential candidates fail to adequately emphasize the centrality of courts in our lives—and the need to explain their vision for ensuring courts staffed with judges who truly respect the text, history, and values of the whole Constitution—they would be making a mistake.  And that mistake could be costly, not only for them, but for our country.

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