As Senate Majority Leader Mitch McConnell (R-Ky.) fills the judiciary with conservatives, and does so boldly and volubly, Republicans campaign on federal and Supreme Court nominations. Meanwhile, Democrats have been largely passive about the courts, rarely mentioning them, CNN chief legal analyst Jeffrey Toobin wrote in the New Yorker last week.
“Consider, for example, the Web sites of three leading contenders for the Democratic Presidential nomination: Joe Biden, Bernie Sanders, and Elizabeth Warren. Each site has thousands of words outlining the candidates’ positions on the issues — and none of them mentions Supreme Court nominations, much less nominations for lower-court judges,” Toobin wrote.
The reason, many political analysts believe, is twofold: Democratic voters are motivated not by the Supreme Court but by political issues, such as women’s rights, climate change or abortion, and liberals have never organized voters around the court as an institution to win.
Republicans have a 20- to 30-year head start building institutions, such as the Federalist Society and the Heritage Foundation, that train and feed right-leaning lawyers on to the bench. McConnell has focused on transforming the judiciary, calling judicial confirmations “a political decision based on who controls the Senate.” His goal, he told a group of conservative and libertarian attorneys in December, was to “confirm as many circuit judges as possible” — an ambition he has achieved, assisting President Trump in pushing more federal judges through the Senate in his first two years than any recent president.
But there are Democrats seeking to make the courts as much of a voting issue on the left as it is on the right.
“The threat to things progressives hold dear is becoming more acute,” said Brian Fallon, executive director of Demand Justice, a progressive advocacy group launched in May 2017. “The salience of the court as an issue is still a far way away from the right, but we’re starting to make up ground.”
In December 2016, a survey by Pew Research Center showed that more than 70 percent of Democrats approved of the Supreme Court.
Fallon said that the data told the story of what has been true for many years: By and large, Democratic voters revere the court as an institution, still viewing it from the era where it was a force for progressive change.
“There was complacency, or a non-urgency, and a belief that the court was not an issue that needed to be solved or confronted,” he said.
The confirmation hearing of Supreme Court Justice Brett M. Kavanaugh, Fallon said, was “a milestone moment” that has started to cause a shift in opinion. Democrats have long been motivated by specific issues, but “people are starting to understand the politicization of the institution and support more aggressive responses from politicians on Capitol Hill,” he explained.
Last month, Demand Justice polling showed that only 23 percent of Democrats approved of the Supreme Court, and more than 70 percent said the Kavanaugh confirmation saga made them think the court was politicized.
According to its May polling memo, other high-profile Democrats have joined the call to reform the Supreme Court, “such as former Attorney General Eric Holder and presidential candidates like South Bend Mayor Pete Buttigieg and Beto O’Rourke have all floated this idea, while senators like Elizabeth Warren, Kamala D. Harris and Kirsten Gillibrand have all said they are open to it.”
Democratic presidential hopeful Bernie Sanders (Vt.) is also open to discussing judicial reform proposals, a spokeswoman for the U.S. senator told The Washington Post in a statement. He believes that “the only way to build a long-term progressive judiciary is by building a grass-roots movement that demands federal courts uphold the Constitution and support equality for all.”
Merrick Garland’s Supreme Court nomination was the perfect encapsulation of where the gap between the parties lie.
In 2016, the Republican Party was conditioned to want control of the courts, no matter the issue, Fallon said. Voters were motivated to fill the vacancy and they turned out on Election Day.
But the infrastructure that has been built to energize voters on the left — around issues such as health care, immigration and criminal-justice reform — is different. For Democrats, though there was a resurgence in voter turnout, the Supreme Court and lower-court vacancies didn’t gain sufficient traction as a topic, said Fallon, who at the time was working on Hillary Clinton’s campaign.
Although media attention has largely focused on Trump’s Supreme Court appointees, he came into the presidency with an uncommon number of vacancies for judges on federal appeals courts. The Republican-led Senate held up numerous federal bench appointments made by the Obama administration, including that of Garland.
The lifetime appointments fulfill Trump’s campaign promise to remake the federal judiciary by filling the courts with conservative judges. The nominations were aided by the Republican-controlled Senate and changes in chamber rules that call for a simple majority in the confirmation of federal judges, including Supreme Court justices, instead of the 60 votes required previously.
The midterm elections enhanced the GOP majority in the Senate, which is the chamber responsible for confirming judicial nominees. Since then, Trump has been able to deepen his imprint on the federal judiciary.
But Democratic voters on the 2020 campaign trail still seem less concerned with lower-court appointments.
In the upcoming election, there may be a Democratic constituency listening when candidates discuss the Supreme Court, but it’s not fueled, in and of itself, by the court’s importance. The interest continues to be through the lens of specific political issues, perhaps linked to Roe v. Wade, redistricting or even an anti-Trump, anti-Kavanaugh sentiment. Based on history, though, that seems unlikely to sufficiently move the left voter base enough.