The Washington PostDemocracy Dies in Darkness

Democrats hope Kennedy’s retirement will make the courts a galvanizing issue for their voters

Democratic activists are hoping to make the federal judiciary as much an issue for their voters as it has been for the Republican base for decades.
Democratic activists are hoping to make the federal judiciary as much an issue for their voters as it has been for the Republican base for decades. (Matt McClain/The Washington Post)

COLUMBUS, Ohio — Democrats for years notched wins at the Supreme Court that secured legal protections on abortion, health care and gay rights — victories that party officials say created a sense of complacency among their voters around the importance of the federal judiciary.

But liberals are now facing a reckoning in the long-running judicial wars as Republicans under President Trump have filled federal district and appeals courts with conservative jurists and are poised to reshape the Supreme Court with the replacement for retiring Justice Anthony M. Kennedy.

Democratic leaders and activists are hoping to use the battle over Kennedy’s replacement — and the consequences that come with potentially shifting the court to the right for a generation — as a way to energize the party around the future of the judiciary in the same way conservatives have successfully used the issue for years to galvanize Republican voters.

Supreme Court Justice Anthony M. Kennedy, 81, said he is retiring. The Post's Robert Barnes explains why that will ignite a "real fight" for his replacement. (Video: Monica Akhtar/The Washington Post, Photo: Jabin Botsford/The Washington Post)

“For folks who have more progressive social views, they have mistakenly felt that those rights were comfortably secure,” said Sen. Christopher A. Coons (D-Del.), describing why Democratic voters have not made the courts as central an issue as Republican voters. “A generation of younger voters have grown up in a time where they literally can’t imagine Roe being overturned.”

Conservatives have methodically mobilized for decades on judicial nominations sparked by decisions handed down by the Supreme Court under Chief Justice Earl Warren, which advanced liberal causes in the 1950s and 1960s through landmark decisions on civil rights, privacy and the power of the federal government. The movement built up strength over time and is now playing an even more influential role as groups such as the Federalist Society, founded more than three decades ago, are directly involved in the Trump administration’s selection of nominees for the Supreme Court as well as other openings on federal courts.

Conservatives spent decades arguing that “activists” on the federal bench were advancing liberal policies, proving to be a powerful force even when Republicans controlled Congress or the White House.

President Trump met July 2 with four federal appeals court judges, who he is considering to fill Justice Kennedy’s Supreme Court seat. (Video: Monica Akhtar, Patrick Martin/The Washington Post)

“There are so many issues conservatives care about that they feel the courts have taken away from the American people,” said Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, a well-financed heavyweight group on the right. “Liberals have been very effective at skipping right to the courts.”

But with that dynamic beginning to change, Democrats are looking to replicate the success of groups such as Severino’s and the Federalist Society, while acknowledging it could be a difficult task.

Among Democrats, the lack of interest in the courts is evident even among the most educated and active voters of the party’s base — an issue that strategists are trying to better understand and mitigate. 

Nearly three weeks before Kennedy said he would retire, the newly formed group Demand Justice held a pair of focus groups in this Ohio capital composed of engaged Democratic voters to test their views toward the courts.

The focus groups — one of white women and the other of black millennials — found that rallying around the courts was not a high priority for these voters and that the role of the courts was not well-known. Participants often didn’t distinguish between local courts and the federal judiciary. 

During a focus group of 10 college-educated white female voters, one woman named Olivera, 37, said that when it came to judges, “I don’t see their day-to-day impact on my life.”

Though Kennedy, who has been the key swing vote on the court for years, had been in the news just that week after ruling in favor of a Colorado baker who declined to make a wedding cake for a same-sex couple, seven out of the 10 women in the focus group didn’t know who he was. 

And when asked about the likelihood that Roe v. Wade, the landmark decision legalizing abortion, would be overturned, a 42-year-old woman named Amanda responded: “I think it’s completely unlikely.” 

Brian Fallon, Demand Justice’s executive director, said that initially the focus group participants didn’t acknowledge the Kennedy seat as the one that could tip the balance against Roe v. Wade. But once they were given more information about the stakes involved with the Kennedy seat, the voters became concerned much more quickly and subsequently more motivated to mobilize.

“If Trump succeeds in this confirmation fight, progressives will learn the hard way of the importance of the courts,” said Fallon, a veteran of the Obama administration and the Hillary Clinton campaign. “It’s unfortunate it might take that for the left to realize the courts are an institution worth fighting for.”

Liberals are still smarting from Senate Republicans’ decision in 2016 to ignore President Barack Obama’s third nominee to the Supreme Court — a move that Democratic senators initially thought would backfire politically on the GOP. 

Instead, Senate Majority Leader Mitch McConnell’s audacious tactic to obstruct Merrick Garland’s nomination proved to be a boon for both candidate Trump and the Senate Republicans who were then at risk of losing their majority. Democratic Senate candidates barely campaigned on the issue, and the topic of the Supreme Court went unmentioned at the Democratic National Convention in Philadelphia that year. 

“I had to calm myself down because no one was talking about it,” said Nan Aron, who leads the progressive Alliance for Justice. “No one.”

Meanwhile, Trump’s promise to nominate conservative justices from a list that the Federalist Society helped compile helped persuade Republican voters to support a presidential nominee who once backed abortion rights.

Of the 21 percent of voters who said the Supreme Court was the most important issue for them in the 2016 election, 56 percent cast their ballots for Trump, while just 41 percent voted for Hillary Clinton, according to exit polls.

“Politicians come and politicians go, but these are lifetime appointments,” said Sen. John Thune (S.D.), the third-ranking Senate Republican. “And to the base, the Constitution and maintaining our constitutional rights and freedoms is a very, very big priority politically.”

Part of the left’s new strategy is to encourage Democratic senators to be more confrontational when it comes to Trump’s reshaping of the federal judiciary.

Demand Justice has lavished praise on Sen. Mazie Hirono (D-Hawaii), who has pledged to oppose advancing all Trump judicial nominees as a form of protest vote. 

And before Kennedy made his retirement official, the group had already planned to try to persuade Democratic senators to vow to oppose any person on Trump’s shortlist of potential justices. About a third of the 49-member Democratic caucus has made that pledge already, Fallon said. 

His organization, which employs about a dozen people, launched a $5 million campaign to drive up opposition to Trump’s eventual nominee, although Fallon said the group has raised more than that amount. A month before Kennedy’s retirement announcement, Demand Justice started ads on the perceived front-runners on Trump’s shortlist of justices. 

“Since Trump, I have never seen so much energy and activity on the progressive side around the courts,” said Aron, a veteran of the judicial wars. “And it will only grow with this Supreme Court fight that’s brewing.”

There’s some evidence that the confrontational tactic could resonate. In a separate phone poll that Demand Justice conducted in April of Democratic voters, 53 percent said it’s “very important” for Senate Democrats to oppose most or all of Trump’s picks for the courts, while 60 percent said they would be “much less” likely to back a Democratic candidate who had voted in favor of Trump’s judicial nominees. 

“Honestly, I like right now how the Democrats have not been, at the federal judge level, not been approving some of Trump’s nominations,” said Hassan Zahir, 36, who participated in the focus group here of black millennial voters. “Some of them are starting to pay more attention, and those are the type of people we need in office.”