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Supreme Court opening puts progressives on tight rope

Democrats want the nominee to be a counterweight to the conservative agenda without becoming another side to the same coin. 

WASHINGTON (CN) — Finally in reach of the chance to nominate a new justice to the Supreme Court after three Republican appointments, Democrats are looking for a justice who can balance adherence to precedence while also representing historic change. 

It’s no secret that progressives are unhappy with decisions that the conservative supermajority of justices have made this term, and they’ve modeled their ideals for a nominee to counteract what they see as a court driven by ideological preferences.

“Somebody who is a fair-minded person, who understands the importance of precedent and continuity and rule of law, who understands the Constitution's importance to the American people and the need to make sure it remains relevant,” Caroline Fredrickson, a professor at Georgetown Law and previous president of the American Constitution Society, said when asked how she would describe the perfect progressive justice. 

The focus on adherence to precedent is driven by moves made by the conservatives to overturn decades-old rulings on access to abortion, the Voting Rights Act, and the power of the administrative state. 

Respect for precedent is important to progressives not only because they disagree with some decisions made by the conservatives but also because it intersects with all of the issues they value. 

“The respect for precedent and the understand of the basic principles there I think are really really important because it is very intersectional with all of our issues,” Lena Zwarensteyn, senior director of the Fair Courts Program at the Leadership Conference on Civil and Human Rights, said in a phone call.

She continued: “I think a lot of the campaigns that we have seen that have been attacking reproductive rights are from the same well-orchestrated machine that is trying to make sure that people don't have access to the ballot box. And so making sure people have control of their own bodies, but then also are able to fully participate in democracy — it really is an inextricably linked.” 

A potential justice’s support of the 50-year-old precedent in Roe v. Wade has often taken center stage at confirmation hearings. While progressives are expecting a nominee who would support access to abortions, they say the issue extends beyond just protecting Roe

“It's absolutely critical that the court recognizes the fundamental rights that adhere to everyone in our bodies in our choices about whether or not to have a child and abortion is part of it, but it's really about autonomy and liberty and equality,” Fredrickson said. “So I think narrowing it down to 'is it about abortion or not?' — it sort of doesn't recognize the kind of full autonomy that control over reproductive decisions gives, to both potential parents and people who don't want to be parents, to have the ability to make those decisions.” 

The issues that most concern progressives also drive what they’re looking for in experience from a justice. This has created a strong preference for someone with criminal justice experience, like a public defender, or experience in labor law or voting rights. All of these preferences are tied to the idea that the justices need to better understand the experiences of more Americans. 

“We have faith that what the president will be looking for in his selection is folks who really do understand how the court’s decisions actually impact people's lives and all people not just the wealthy and powerful,” Zwarensteyn said. 

While trying to preserve what was once at the court, progressives are also looking to take the court to where it has never gone before. One of the clearest examples of this is President Joe Biden’s commitment to nominating the first Black female justice to the bench, but it is far from the only place progressives hope to see diversity. There is a push to have justices on the court who come from non-Ivy League backgrounds and who have differing career experience. These attributes are important because they’ll help the court look and act more like average Americans. 

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“Someone who's been a public defender and somebody who's come up through public schooling, not through Ivy Leagues and so forth, is going to be able to tell stories to the other justices or even perhaps in dissents but has a lived experience that is unique on the court,” Fredrickson said. “Unfortunately, I think it should be much more common, but that lived experience is something that is highly valuable to a judge. I think it's interesting that people forget that judges are judging, and judgment involves discerning the issues and understanding how to apply the law to the facts. And people who have a better grasp of the facts will be doing a better job at that.” 

Something that progressives don’t want is someone who is so ideologically driven that they disregard the rule of law. 

“It really means faithful to the whole Constitution and not simply to pick and choose your favorite amendments and apply them in a quite narrow or extreme way — which seems to have been the direction of the conservative majority,” Fredrickson said. “There is an important aspect of the Constitution that is about fairness, equality and justice, and I think what's really critical is that certainly the next justice, but hopefully the court as a whole someday, soon will recognize and see in the Constitution those mandates for equality and fairness and ... really recover the vision of the Constitution that's more true to its promise.” 

While many progressives remain enraged over the appointment process of recent justices and decisions by the conservative majority, they’re not looking to become two sides of the same coin. For this reason, progressives are focused on appointing someone who will boost the integrity of the court.

“It's not necessarily by fighting fire with fire, because you got to use water to put the fire out, but it is to be making sure our courts are more balanced, that they are more reflective of mainstream legal theory,” Zwarensteyn said.

There is a view by some Democrats that Justice Stephen Breyer’s replacement needs to share his reputation as a consensus builder. Progressives are careful to say, however, this doesn’t mean a justice should compromise on their principles. 

“Justice Breyer did not compromise on his principles or what he believed in,”  Zwarensteyn said.

That's why a variety of perspectives is important, she added, "because those informal conversations, that relationship building, is really, really important."

"So having somebody who can just be in the room can really change the dynamics," Zwarensteyn continueed. "I wouldn't necessarily call that a moderating force, but somebody who can really help forge a deeper understanding of the law or of how people are experiencing the law in their own community.” 

The new justice will not change the makeup of the 6-3 conservative majority court, but that doesn’t mean her nomination will not change the court. Many justices have said any change in the nine-member body has an impact on the group’s dynamics. 

“There is an internal dynamic that may not affect say how Justice Thomas is going to rule but may affect some of the argumentation that's used by somebody like a Justice Chief Justice Roberts, or may even pull over one of the other conservatives every once in a blue moon,” Fredrickson said. 

Dissents also matter. The majority opinion may make the rule but a dissenting opinion can speak to future generations. Many justices on the left and right have effectively used their dissents to shape future legal thinking. This will likely be an important tool for Biden’s nominee. 

“That is going to be a really important quality certainly in any judge that we have because … what is 6-3 today may not be for very long,”  Zwarensteyn said.

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