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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