The Washington PostDemocracy Dies in Darkness

Democratic presidential candidates come under pressure to release Supreme Court picks

People leave the Supreme Court after it resumed hearing oral arguments at the start of its new term in Washington on Oct. 7, 2019. Democratic presidential candidates have come under pressure to release a short­list of judicial nominees. (Mary F. Calvert/Reuters)

Democratic presidential contenders are coming under increased pressure from their base to take a page from Donald Trump’s 2016 playbook and release a shortlist of potential Supreme Court nominees — one part of a larger strategy from party activists to make the courts a central issue in the 2020 race. 

Demand Justice, a group founded to counteract the conservative wing’s decades-long advantage over liberals in judicial fights, will release a list of 32 suggested Supreme Court nominees for any future Democratic president as they ramp up their push for the 2020 contenders to do the same. 

The slate of potential high court picks includes current and former members of Congress, top litigators battling the Trump administration’s initiatives in court, professors at the nation’s top law schools and public defenders. Eight are sitting judges. They have established track records in liberal causes that Demand Justice hopes will energize the liberal base. 

And the move replicates Trump’s unusual decision in May 2016, when he had become the presumptive Republican presidential nominee, to release a list of his potential Supreme Court picks in an attempt to assuage a base skeptical about his conservative bona fides. 

“While Democrats play by the rules, Republicans are shredding the rule book, and the result is a partisan Supreme Court that works for corporations and the Republican Party and against everyone else,” said Christopher Kang, the group’s chief counsel who was also the top lawyer working on judicial nominations in the Obama White House.

Kang added: “If we want to restore balance to our courts, we need to stop shying away from the fight for them and instead give progressives something to fight for: judges who have been bold, progressive champions who have been on the front lines advancing the law for our values.” 

Democrats have long acknowledged that they have lagged significantly behind their Republican counterparts when it comes to enthusiasm about the courts from their respective bases. Exit polls from 2016 showed that of the roughly 21 percent of voters who said judicial nominations were the top factor in their presidential vote, 56 percent favored Trump and 41 percent voted for Democratic nominee Hillary Clinton. 

Senate Democrats were overconfident that Senate Majority Leader Mitch McConnell’s unprecedented blockade of Merrick Garland, former president Barack Obama’s final Supreme Court nominee, would backfire politically on Republicans. In reality, McConnell’s decision not to give Garland a hearing nor a vote is largely seen as galvanizing parts of the Republican base who were uneasy about Trump as their nominee. 

“This has been a 40- or 50-year project on the right to capture the courts, and I think they’ve been frighteningly successful in achieving that goal,” said Meagan Hatcher-Mays, the director of democracy policy at the liberal advocacy group Indivisible. “If you care about any issue, you should care about the courts.” 

In addition to varied legal backgrounds, Demand Justice has compiled a list of potential Supreme Court candidates that are diverse when it comes to race, gender and sexual orientation. Of the 32 picks, 19 are women and 13 are men, including one transgender man. Ten are African Americans, seven are Asian American, four are Latino and 11 are white. Two are lesbians. 

The group also opposes judicial nominees who have been partners at corporate law firms or as in-house counsel at large corporations, even those with track records of advocating for liberal causes. 

Most candidates in the Democratic field have yet to say whether they will release a shortlist like Trump did. (The president’s two Supreme Court picks — Neil M. Gorsuch and Brett M. Kavanaugh — were not on his initial list released in May 2016). Sen. Amy Klobuchar (D-Minn.) has said she would not unless she wins the presidency. 

“Like President Trump did before his election, each Democrat presidential candidate should also release a list of potential Supreme Court nominees,” said Mike Davis, a former chief counsel for the Senate Judiciary Committee who now leads the Article III Project, a conservative group promoting Trump’s judicial nominees. “But the Democrats likely won’t do this, as they know their lists of liberal judicial activists would scare the hell out of American voters.”

Judicial nominations — at the Supreme Court and in lower-level tiers of the judiciary — are one area where Trump, working in tandem with Senate Republicans, has had unparalleled success. In addition to two Supreme Court justices, 150 district and circuit court judges, as well as two judges to the U.S. Court of International Trade, have been confirmed during the Trump presidency. 

The full list from Demand Justice includes: 

● Michelle Alexander, a visiting professor at Union Theological Seminary and founding director of the Racial Justice Project at the ACLU of Northern California. 

● Brigitte Amiri, the deputy director of the ACLU Reproductive Freedom Project.

● Xavier Becerra, the California attorney general and former Democratic congressman. 

● Nicole Berner, the general counsel for the Service Employees International Union. 

● Sharon Block, the executive director of the labor and worklife program at Harvard Law School and former member of the National Labor Relations Board.

● Richard Boulware, U.S. district court judge for the District of Nevada.

● Mariano-Florentino Cuéllar, associate justice of the California Supreme Court. 

● Anita Earls, associate justice of the North Carolina Supreme Court. 

● James Forman Jr., the J. Skelly Wright professor of law at Yale Law School and former public defender in the District of Columbia. 

● Deepak Gupta, the former senior counsel for litigation and enforcement strategy for the Consumer Financial Protection Bureau.

● Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights.

● Dale Ho, director of the ACLU Voting Rights Project.

● Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund.

● Pamela Karlan, the co-director of the Supreme Court litigation clinic at Stanford Law School. 

● Jane Kelly, judge for the U.S. Court of Appeals for the 8th Circuit.

● Lawrence Krasner, district attorney for the city of Philadelphia. 

● Leondra Kruger, associate justice for the California Supreme Court.

● Catherine Lhamon, the chairwoman of the U.S. Commission on Civil Rights.

● Goodwin Liu, associate justice of the California Supreme Court, nominated by Obama to the U.S. Court of Appeals for the 9th Circuit but was filibustered by GOP senators.

● M. Elizabeth Magill, the provost of the University of Virginia. 

● Shannon Minter, the legal director for the National Center for Lesbian Rights.

● Melissa Murray, the Frederick I. and Grace Stokes professor of law at New York University School of Law. 

● Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund.

● Cornelia Pillard, judge for the U.S. Court of Appeals for the D.C. Circuit.

● Katie Porter, Democratic congresswoman from California. 

● Carlton Reeves, judge for the U.S. District Court for the Southern District of Mississippi.

● Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund.

● Bryan Stevenson, the founder and executive director, Equal Justice Initiative.

● Zephyr Teachout, the associate professor of law at Fordham Law School. 

● Cecillia Wang, the deputy legal director for the ACLU.

● Timothy Wu, the Julius Silver professor of law at Columbia Law School and former special adviser for the National Economic Council for the Obama White House.

● Jenny Yang, senior fellow on labor, human services and population at the Urban Institute.