Despite Prodding, 2020 Dems Still Silent on Court Picks
Liberal judicial advocacy groups are trying to force 2020 Democrats to start engaging with voters about the prospective makeup of the Supreme Court and judicial nominations as a whole.
By and large, they failed Tuesday night. Out of the 12 Democratic candidates for president on stage in Westerville, Ohio, only two discussed judicial nominations in any detail and both invoked the fiercely partisan battle against conservative Supreme Court nominee Robert Bork that derailed his confirmation in 1987.
Former Vice President Joe Biden took credit for leading that fight to defeat Bork, saving Roe v. Wade and access to abortion for a generation, he said. Sen. Cory Booker mentioned Bork and his support for antitrust deregulations, which Booker cast as having gone to such extremes that the jurist is “now laughing in his sleep.” Critics quickly pointed out that Bork isn’t sleeping at all — he died in 2012.
Biden also pledged not to pack the Supreme Court and to make support for abortion rights a litmus test for his court picks, which South Bend, Ind., Mayor Pete Buttigieg also said he would do. Buttigieg said he didn’t want to pack the Supreme Court with people who agree with him but endorsed “reforms” possibly expanding the number of high court justices from nine to 15.
Former Housing and Urban Development Secretary Julian Castro offered up the idea of term limits instead of lifetime judgeships, a possible rotation of judges from the appeals court onto the Supreme Court and also backed the abortion litmus test for nominations.
It was hardly the sweeping commitments on Supreme Court picks and other judicial nominations progressive groups hoped the Democratic presidential candidates would provide. Demand Justice, a liberal judicial advocacy group, earlier Tuesday released a list of 32 possible nominees to the high court as a way of prodding the candidates to start making the issue a bigger priority on the campaign trail.
“Democrats running for president should tell primary voters who they might appoint to the Supreme Court,” Demand Justice Executive Director Brian Fallon tweeted after releasing the names. “And they should be bold enough to pick someone who’s worked to defend civil rights, workers’ rights or reproductive rights.”
Conservative judicial advocates have pressed liberal groups, such as Demand Justice, and others to come forward with a list of names of Supreme Court candidates, given that President Trump produced one during the 2016 campaign.
Back then, Trump took the unusual step of pledging to choose his Supreme Court nominees from a roster vetted and compiled by Leonard Leo, an outside adviser to Trump on the courts while he was on leave from the Federalist Society.
The move provided Republicans wary of how Trump would govern reassurance that their vote for him would help tilt the high court to the right. The move was risky and unprecedented, but 2016 Election Day exit polls showed it paid off, with one out of every five voters saying that the makeup of Supreme Court was their top issue. Trump ended up winning 57% of those voters.
In June, the Alliance for Justice, the group that lead the successful fight against Bork and other major judicial battles since then, launched Building the Bench, an effort to identify progressive judges it and other liberal activists and groups believe are best suited to fill likely vacancies.
Democrats are anticipating scores of lower court openings -- seats held by senior judges appointed by Presidents Obama, Clinton and Carter who are waiting out the Trump administration to retire if a Democrat wins the presidency.
But unlike Trump’s transparent 2016 move, the 40-year-old AFJ has kept its lists of judges secret, and only Sen. Amy Klobuchar has been willing to say she would reveal a full slate of qualified judges on her first day of her presidency, though she too has refused to name names for the time being.
Klobuchar and other Democratic hopefuls have declined to respond to RealClearPolitics’ questions about whether they plan to release any names of judicial nominations, as Trump did in 2016.
Meanwhile, Demand Justice on Tuesday unapologetically provided a group of 32 candidates it described as “brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation.”
That list includes top Trump foe and legal sparring partner, former Rep. Xavier Becerra, California’s attorney general, as well as several of the Golden State’s Supreme Court justices, along with freshman Rep. Katie Porter, a California Democrat who was a student of Elizabeth Warren’s at Harvard Law School. It also cited Nicole Berner, general counsel of the Service Employees International Union, and Sherrilyn Ifill of the NAACP’s Legal Defense and Educational Fund.
Ironically, by releasing its list, Demand Justice was far more successful in drawing fire from the right than in fulfilling its goal of stoking the importance of judicial nominations in the 2020 Democratic race.
Conservative media outlets were quick to point out that the list includes U.S. District Judge Carlton Wayne Reeves, who in April compared President Trump’s criticisms of the judiciary to those of segregationist George Wallace.
Another, professor Zephyr Teachout of Fordham University School of Law, called for the abolition of ICE, the U.S. Immigration and Customs Enforcement agency, during a 2018 campaign for New York attorney general.
Carrie Severino, who runs the conservative Judicial Crisis Network, argued that the roster provides a blueprint to return the Supreme Court to “1960s style judicial activist” and “left-wing judicial tyranny.”
“They keep losing elections, so they’re trying to pack the courts and get their agenda done with radical activist judges,” she tweeted, noting that only eight of the 32 potential nominees on the list have experience as judges and there are only four federal judges that President Obama appointed.
She said the lack of judicial experience “makes sense – they’re looking for activists, not judges.”
Mike Davis, a former Republican Senate and White House aide who played a key role in the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, has argued that AFJ wants to keep its list secret “because the nominees on this [Demand Justice] list would scare the hell out the American voters.”
Davis, who runs the Article III Project, his own dark-money group aimed at countering Democrats’ tactics on judges, on Tuesday noted that Demand Justice’s list of potential Supreme Court nominees didn’t include Judge Merrick Garland. Garland was Obama’s 2016 nominee whose confirmation was blocked by Senate Majority Leader Mitch McConnell for nearly a year ahead of Trump’s election.
“Judge Merrick Garland didn’t even make @WeDemandJustice’s list of 32 potential Supreme Court nominees,” Davis tweeted. “(Apparently he’s too sane.) Does this mean that The Left is finally done crying in their beers over Merrick Garland and the ‘stolen seat’?”