Dems Struggle to Rally Against GOP Court Confirmations
Though Republicans hailed Wednesday’s tax bill passage as their key legislative achievement this year, the Senate GOP has consistently succeeded in a much more low-profile -- but consequential -- arena: confirming judges.
And while Democrats rallied grassroots activists in Washington and around the country against the tax vote and the Obamacare repeal effort before it, the judicial success of the Republican Senate has drawn comparative silence from progressive opposition to President Trump.
In addition to confirming Neil Gorsuch to the Supreme Court in April, the upper chamber has confirmed 18 judges this year -- including 12 appeals court judges, the most ever for a president’s first year, according to an Axios tally. President Obama only confirmed three such judges in his first year.
Senate Majority Leader Mitch McConnell has called this pace “historic” and told radio host Hugh Hewitt in November the GOP is making “long-lasting change” by shaping the courts “far into the future.” Trump tweeted last month that confirmations were moving along at a “record clip… Our courts are rapidly changing for the better!”
Democrats have long struggled to rally their grassroots supporters around the court appointments, and the GOP success is unlikely to be an issue that gains major traction in next year’s midterms.
“It is so indirect to say that man or woman you chose for the bench is going to make a decision which will affect the law, which will affect your life. It’s a hard sell,” said Sen. Dick Durbin, a senior Democrat on the Judiciary Committee.
Brian Fallon, a veteran of Hillary Clinton’s presidential campaign and former aide to Senate Minority Leader Chuck Schumer, said progressives’ long-standing apathy on judicial picks explained the party’s relative silence on the courts this year.
“The progressive movement is just slow to the fact that this is a huge crisis playing out, and it needs to be fought with the same intensity as health care or the crisis with DACA,” Fallon said.
The disparity was laid bare in 2016 when Senate Republicans held a Supreme Court seat open for the final year of President Obama’s term, an unprecedented move. Democrats hoped to rally voters around the vacancy, for which Obama nominated Merrick Garland, but it ultimately subsided as a major issue. Meanwhile, some conservatives who were uneasy about Trump consistently cited the open Supreme Court seat as reason to support him.
Some on the left are hoping that there may finally be an uptick in their attitudes regarding court appointments. The rapid pace of confirmations in recent months has only reinforced that contention.
“What’s becoming apparent is this pace is happening for a reason,” said Marge Baker, executive vice president of People for the American Way, a progressive organization that focuses on the federal courts. “They want to put extreme ideological judges on the bench and that’s giving a lot of people pause and is, I think, energizing the base.”
Still, Baker said her evidence was mostly anecdotal, and it’s difficult to pinpoint how much Democratic voters will be mobilized, if at all. Progressive groups haven’t rallied major opposition to these confirmations the way they have on health care and taxes. Charles Chamberlain, the executive director of Democracy for America, another progressive grassroots organization, said the group had to focus resources on fights with more immediate impact.
“While we fight everywhere, we fight the hardest in the places where we believe we have the possibility to win,” Chamberlain said. “The tools that we have to defeat judicial nominations are limited.”
To defeat any judicial nominee from Trump, Democrats have to do two things: stick together in voting no, and hope multiple Republicans join them. With a 52-48 majority -- and after Democrats changed the rules four years ago abolishing the filibuster for lower court nominations -- the GOP can confirm judges without any Democratic votes.
Publicly fighting nominees whom Democrats view as the most controversial has worked recently. Three withdrew from consideration this month; most recently Matthew Petersen, tapped for the District Court bench, withdrew after a video of him struggling to answer questions about court procedure went viral online.
Democrats viewed those withdrawals as a significant win, and called on Republicans to slow their pace of confirmations to more carefully vet judicial appointees.
Still, Democratic senators have been somewhat split in their opposition. Ten Democrats up for re-election next year in states Trump won have, to varying degrees, supported the president’s picks. Sen. Sherrod Brown of Ohio has voted yes on six nominees to the courts, the fewest of the 2018 senators, and voted no on 12. Sens. Joe Donnelly of Indiana and Joe Manchin of West Virginia have supported 12 nominees, while Sen. Heidi Heitkamp has supported 11; others have supported around half the judicial picks.
Manchin, Donnelly and Heitkamp were the only Democrats to support Gorsuch for the Supreme Court, and Manchin has twice been the only Democrat to join Republicans in supporting a circuit court judge.
“If you get somebody that’s well qualified, well experienced and well thought of and a good person, then they’re going to be okay,” Manchin said.
Several of those senators told RCP they are considering each nominee individually rather than employing a broad strategy. Sen. Claire McCaskill of Missouri, who has supported eight of Trump’s judicial picks (but missed votes on five), said some were noncontroversial but called others “woefully under-qualified.” But asked whether her constituents paid close attention to judicial picks, she said, “Not enough.”
Sen. Jon Tester of Montana, who has supported half of Trump’s picks, said he had “a concern about the quality of the judges” but that he didn’t hear about it much from constituents.
“That’s not something people are intimately aware of,” Tester said.
Some Democrats think it’s an easy political win for red-state Democrats. A senior leadership aide told RCP that judicial nominees represent an opportunity to gain bipartisan credentials with Trump, and also pointed out that each judge could have been confirmed with Republicans only, meaning a Democrat has not cast the decisive vote on any judge. The aide predicted Democrats would stay united in opposition to any future judges if their votes would be decisive.
“In these really deeply red states, they need to show they are working and being reasonable,” said a Democratic strategist working on Senate races. “Showing you’re working with the president is important.” But the strategist emphasized that voting against health care repeal and the tax bill helps “placate the base” despite siding with Trump elsewhere.
Other Democrats aren’t convinced. Chamberlain, of Democracy for America, said it was a “terrible decision” for any Senate Democrat to support any Trump nominee. The group has supported a primary challenge to California Democratic Sen. Dianne Feinstein, the ranking member of the Judiciary Committee, in part for what Chamberlain called her insufficient opposition on judges.
Feinstein, in a brief interview, was baffled by Chamberlain’s criticism, pointing out that she has spoken out against the GOP’s pace in confirmations consistently in hearings, and called for them to halt the process.
“How do you push back when you don’t have the votes?” Feinstein said, adding that she considered the pace of nominations a “pack the courts” strategy.
Fallon, the former Schumer aide, said he thought the benefits of supporting Trump nominees for the red-state Democratic senators would be minimal, since rank-and-file voters don’t take notice and the incumbent would still be opposed by conservative groups like the National Rifle Association or U.S. Chamber of Commerce.
“I don’t think being complicit in the confirmation of some judges that are going to probably reach some very unpopular decisions in the coming months and years is worth whatever political upside those red state Democrats foresee for themselves,” he said.
Still, in the broader picture, judicial confirmations are unlikely to play a central role in the 2018 elections, especially with much of the attention next year focusing on the House majority, where judicial nominations are a non-issue. Democrats have made clear they intend to run on the GOP’s health care and tax plans, and focus on kitchen-table issues -- which does not include obscure judgeships.
“There are so many reasons for voters to go to the polls and to stop this perversion of our constitutional system; I’m sure that will be one of many,” said Sen. Jeff Merkley.