Progressive conversations about the federal judiciary started in earnest in 2016, when Merrick Garland’s nomination to the Supreme Court was blocked by a Republican-controlled Senate.
It only increased after Brett Kavanaugh’s appointment in 2018.
And now, over the course of the 2020 primary cycle, the federal courts have only gotten more attention, from voters and candidates alike.
How Did Candidates Talk About The Issue?
On the campaign trail, most candidates talked about reforms to the court’s structure and explained the types of judges they would seek to appoint.
The idea of expanding the court gained national attention when Pete Buttigieg became the candidate who most strongly advocated that reform.
Others came out in support for term limits and/or rotating federal judges on and off the Supreme Court.
Candidates also championed judges with diverse professional and geographical backgrounds.
More than anything, though, the Democratic candidates helped raise the importance of the courts in the minds of voters.
Daniel Goldberg at Alliance for Justice said the attention the candidates paid the courts was worthwhile and will be important if any get into office.
“I just can’t emphasize it enough how galvanized progressives are in a way that they weren’t, I think, before prior elections on this issue, and they signaled to every campaign how imperative it is to prioritize taking back our courts and taking back our Constitution,” Goldberg said.
Some Iowa voters asked about the courts, but a lot more of them were concerned about Senate Majority Leader Mitch McConnell. Their worry was rooted in McConnell’s refusal to consider Garland’s nomination, as well as his refusal to bring legislation to the Senate floor, in part to focus on ramming through conservative judges.
Goldberg said it’s important for candidates to talk about these issues for two reasons. One, to educate the public from the platform they have, and to show commitment to pay attention to this issue from day one.
Sen. Amy Klobuchar often says filling judicial vacancies will be a top priority for her administration. Sen. Elizabeth Warren has talked about instituting ethics requirements for all federal judges and introducing more transparency to the way they use money.
Most of the candidates have pledged to look for judges who agree that Roe v. Wade and Brown v. Board of Education are precedents and who promise to uphold the rule of law, and interpret it fairly.
“I’m looking forward to between now and November even more,” Goldberg said. “I think the more the candidates highlight the contrast between their vision of the Constitution and our critical rights and legal protections and the president’s assault on those very rights and legal protections, I think only the better.”
What Have Voters Done?
A lot of attention on the courts came in the form of court-specific forums or questions at debates. At the debate last Friday in New Hampshire, candidates answered several questions about the courts in a segment dedicated to the topic.
On Saturday, Stephanie Ruhle of MSNBC and Huffington Post’s Jennifer Bendery hosted a five-hour forum focused on the courts and asking the candidates how they would work with a federal judiciary that’s shifted more conservative.
Because of that, Christopher Kang at Demand Justice said, the issue of the courts has more attention now than ever before.
“If you think about where we were at this point four years ago, it’s a completely different universe or a different world now,” he said.
But the attention isn’t neutral. More people have paid attention to how the makeup of the courts has shifted and voters have been calling it out. Kang said the candidates and regular citizens are responsible for that. And it’s only been achieved by the increased attention.
“I think there’s a much greater understanding that as much as we would hope that the courts would be neutral and impartial arbiter of justice, that’s not the court system we have now,” Kang said. “The fact that [the candidates are] proposing solutions, the fact that they’re debating them, the fact that people in town halls are standing up and asking about them and challenging them on their plans for the courts, I think shows that this debate is moving really in the right direction.”
Kang said the attention isn’t going to go away either. In June, the Supreme Court will release its decisions on several cases dealing with civil rights, from LGBTQ discrimination to abortion, which have already drawn a lot of eyes.
“I think you already are seeing a different level of activism and engagement than we’ve ever seen around the court before and that’s going to continue to snowball,” he said.
Candidates can also continue talking about it. The general wisdom is that voters only care about health care and getting President Donald Trump out of office.
But Goldberg explained how the courts can be included in those conversations.
“There’s an opportunity for people running for president to remind the American people that his Justice Department is trying to get the entire Affordable Care Act, including its protection for people with preexisting conditions, invalidated and thrown out by a federal court,” he said. “That’s just one example of how Democratic candidates can emphasize to voters who sits on a federal bench.”
The jurists who sit on the bench are the problem going forward. Looking into the future, any Democrat who wins the presidency will have to contend with a court packed with judges who have a conservative view of the law.
As soon as the impeachment trial ended, McConnell ended debate on a number of federal judges and the Senate has already confirmed a handful.
“The reality is that Donald Trump and the Republicans have done all they can to put on the bench individuals who will turn back the clock on so many of our right, our legal protections, which is why this upcoming election is so essential, really in many ways, to our constitution, our rule of law,” Goldberg said. “There are some of our nation’s most important laws truly hanging in the balance.”
And the fate of the rule of law in America is up to voters in November. A Democratic president wouldn’t be able to automatically reverse the harmful effects of the Trump Administration’s judicial nominations, but they could stop some of the bleeding.
That’s what Kang hopes for.
“I don’t feel good about the state of the judiciary seeing how President Trump has seated so many young, incredibly ideological, oftentimes unqualified judges who are going to serve life terms,” he said. “But to the extent that we’re starting to see Democrats and progressives from grass roots all the way up to presidential candidates talking about the possibility of change, I feel hopeful about what could happen in the next administration.”
By Nikoel Hytrek