Across the Aisle, Trump Court-Packing Drives Call for Payback

‘WASHINGTON (CN) – For 2 1/2 years, they’ve watched 146 federal judges nominated by President Donald Trump speed through the Senate confirmation process.

Democrats could soon get their turn, but if there are plans for a competing assembly line, they have gotten little airtime from those seeking the party’s presidential nomination in 2020.

“Unfortunately, they [judicial appointments] have been far too little a focus, except for a little bit of discussion around how the Supreme Court specifically might be reformed,” Caroline Fredrickson, president of the American Constitution Society, said in an interview. “There’s been almost no discussion of the impact of Donald Trump’s court-packing, of the extreme rightward drift of the judiciary, and of some of the most egregious decisions coming out of the courts. It seems Democratic candidates are just not paying attention to what is transforming the country.”

Chief Justice John Roberts Jr. looks on as Judge Neil Gorsuch signs the Constitutional Oath after his swearing-in on April 10, 2017. (Photo by Franz Jantzen, courtesy of the U.S. Supreme Court Public Information Office)

Trump’s appointees, most of whom are young and boast sterling conservative credentials, make up nearly a quarter of the appellate bench. The Republican-controlled Senate has been critical to the success of Trump’s nominations, but few dispute that Democrats were slow, prior to Trump’s election, in prioritizing judicial nominations as part of the party’s agenda and tying the courts to the policy issues that drive its base.

“I think that Democrats are beginning to catch up on this, but Republicans have had some kind of deep understanding about trying to organize around a real takeover of the courts for a long time,” Laura Flegel, legislative and public policy director of the National Employment Lawyers Association, said in an interview.

In a packed primary campaign dominated by discussion of health care, economic reforms and cultural issues, the top candidates seeking to take on Trump in the 2020 election have been relatively quiet on what kinds of judges they would nominate, especially to the lower courts.

Theresa Lau, counsel for reproductive rights and health at the National Women’s Law Center, pointed to the crowded field as a potential reason judicial nominations have not gotten as much play as advocates would like so far in the primary.

“I think part of it is the judicial nominations process as a whole is pretty wonky, so I think because of that, candidates don’t feel like they have an easy sound bite to talk about judicial nominations the way they do about other issues that are really salient and in the news right now,” Lau said in an interview.

None of the 13 presidential campaigns contacted by Courthouse News offered a comment on the candidates’ plans for judicial nominations, but some of their public remarks offer clues.

Marge Baker, executive vice president for policy and programming at People for the American Way, picked out Massachusetts Senator Elizabeth Warren as one of the best among the 2020 Democrats at talking about the courts. A former law professor, Warren released a campaign video in July where she promised to nominate “fair-minded constitutionalist judges” to the court. 

Warren said she wants judges who “value justice for all, not just for the rich and the powerful, judges who will defend equality for the most vulnerable among us, not roll back constitutional rights for huge swaths of our country.”

Several candidates, including Senators Bernie Sanders of Vermont and Kirsten Gillibrand of New York, have said any judge they nominate must be committed to upholding Roe v. Wade, the landmark Supreme Court decision that held there is a constitutional right to an abortion.

Another candidate who has made Roe a nonnegotiable consideration for his nominees is Julian Castro. The former secretary of the Department of Housing and Urban Development told People for the American Way that judges should “understand the Constitution as it relates to today.”

Similarly, Mayor Pete Buttigieg of South Bend, Indiana, told PFAW he would want judges who understand “the way American life interacts with these constitutional texts” and who can “think for themselves.”

On the campaign trail, most of the talk about judicial nominations has focused on the Supreme Court, with candidates like Buttigieg offering plans to fundamentally restructure the nation’s high court. Former Vice President Joe Biden has said he would not support expanding the court. He noted an openness in July to renominating Merrick Garland, the D.C. Circuit judge whose 2016 Supreme Court nomination by President Barack Obama was blackballed by the Republican-controlled Senate.

Chris Kang, chief counsel at Demand Justice, said candidates should not hesitate to go beyond their general visions for their nominees, even to the point of naming exactly who they would chose for the Supreme Court.

Kang said candidates can say a lot about their vision for the courts by pointing to specific people they would nominate. For example, Kang said, Biden’s comment that he would be open to renominating Garland expresses a different vision for the bench than if he had said he would nominate someone in the mold of Justice Sonia Sotomayor. 

“I think we at Demand Justice think that it should be incumbent on these Democratic candidates to show us a list of literally who they would nominate to the Supreme Court, because I think it’s a very important articulation of principles,” Kang said in an interview. “But if people are not willing to go that far, the least they should do is talk about the principles – the kinds of professional backgrounds that they would or would not prioritize so that voters have a sense of what their approach to the bench would be.”

In an effort to speed up nominations meanwhile, activists say Democrats should not try to revive the procedural rules and traditions jettisoned by Republicans. These include the blue slip, the tradition under which senators had to sign off before a nominee from their state went forward. For the first two years of the Trump administration, the then-chairman of the Senate Judiciary Committee, Iowa Republican Chuck Grassley, made it his policy that blue slips cannot hold up nominees to federal appeals courts, which hear cases from multiple states. Senator Lindsey Graham of South Carolina has continued the policy as the committee’s latest chair.

Even in the absence of a large focus on judicial nominees so far in the primary campaign, advocacy groups are starting to line up nominees in the event that a Democrat wins the White House in 2020.

Leading the effort is the Alliance for Justice, which is aiming to gather enough potential nominees that the next Democratic president will be able to begin the process of filling seats on the courts on Day 1.

“Again, to give them credit, Donald Trump and the right wing prioritize judges, and it’s time for progressives to do the same,” Dan Goldberg, the legal director of the Alliance for Justice, said in an interview.

Goldberg said the goal of the Building the Bench initiative is to identify progressive lawyers who might not have submitted their names for consideration in previous administrations, relying on a host of groups on the left that will help identify candidates and encourage them to apply for judicial vacancies. Goldberg said the project is in its early stages, but aims to jumpstart the Democratic effort to fill out the courts.

“What we’re doing is making sure that the next administration doesn’t lose one minute when it comes to making critical nominations,” Goldberg said. “And there’s amazing lawyers out there throughout the country, people who have been fighting on behalf of workers, on behalf of clean air, clean water, on behalf of consumers, on behalf of civil rights and voting rights, and in the past the presidents of both parties have not looked at as expansive a pool of potential judges as possible.”

Goldberg said the Trump administration has “looked outside the box,” as compared to previous administrations, with some of its nominations, not fixated on choosing former federal prosecutors and corporate law firm partners. He said Democrats should also look to lawyers with different backgrounds when making nominations to the federal bench.

Sen. Patrick Leahy, D-Vt., a former chairman of the Senate Judiciary Committee, joined at left by Sen. Dianne Feinstein, D-Calif., rips a copy of the committee rules of procedure as he charges current Republican chairman Lindsey Graham with breaking the rules to bend to President Donald Trump on Aug. 1, 2019. (AP Photo/J. Scott Applewhite)

Activists stressed racial and ethnic diversity as key priorities for Democrats developing judicial nominations plans, in the wake of a Trump nominations campaign that has mostly put white men on the federal judiciary.

But they also said getting more experiential diversity on the bench is a must for Democrats as they make plans for judicial nominations. This means looking at candidates from fields that have relatively little representation on the federal bench, including those who have practiced environmental law, plaintiff-side employment law or worked as public defenders.

“It’s important that people understand that fighting to protect workers’ rights or the environment or to advocate on behalf of low-income defendants, that should be viewed as a virtue in a judge, not something that disqualifies them,” said Sam Berger, vice president of democracy and government reform at the Center for American Progress. “And I think for too long we’ve seen judges taken from a narrower part of the legal profession and that needs to be expanded.”

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