People For the American Way

During the 2020 Primaries, We Need to Talk About Supreme Court Nominations

News and Analysis
During the 2020 Primaries, We Need to Talk About Supreme Court Nominations

Now that a host of Democratic presidential candidates are seeking the party’s nomination, it’s essential that we focus on one of the most critical issues the next occupant of the White House will face: the need to confirm fair-minded judges to our federal courts.

Candidates looking for progressive support—in addition to speaking about their plans for the economy, health care, education and the environment—need to take the opportunity to lay out a compelling vision for putting fair-minded constitutionalists on the federal judiciary, including the Supreme Court.

Despite the fact that the federal judges the next president nominates will serve for decades after she or he leaves office, conversation in Democratic primaries about the future of the Supreme Court has been fairly muted. Typically, Democratic candidates have railed against attempts to overturn Roe as well as disastrous decisions like Ledbetter and Citizens United, then pledged that their nominees wouldn’t join those right-wing attacks on the law. But when it comes to laying out a proactive vision for the Court, other than Barack Obama’s abortive (and praiseworthy!) call for “empathy” as a key attribute for a Supreme Court justice, Democratic candidates have rarely said much, nor have progressives asked them to.

That certainly hasn’t been true on the other side of the aisle. There, Republicans are trained seemingly from birth to pledge that they’ll name jurists in the mold of Clarence Thomas or Antonin Scalia and promise nominees with a record as “strict constructionists” (a term of art that means a nominee who will give the far Right everything it wants). Donald Trump took that pandering was taken to a new level when he pledged to limit himself to a specific list of nominees pre-vetted by the Heritage Foundation and the Federalist Society, two groups that share a mission of radically reshaping the federal courts in their own ultra-conservative image.

Republicans’ habit of telling their base exactly what they want to hear when it comes to judges and delivering on those promises once they’ve been elected didn’t come out of nowhere; it was the result of years of concerted organizing by the Corporate and Religious Right, who joined forces to signal that their support was contingent on candidates’ willingness to clearly and regularly align themselves with a cogent (if deeply disturbing) vision for the future of the Court. They want a judiciary that protects corporations, the wealthy and the powerful over all Americans; that will roll back the clock on rulings that protect historically disadvantaged groups like the LGBTQ community, women, workers, and people of color; and that will be a rubber stamp for the president—as long as that president is a Republican, of course!

That strategy has paid tremendous dividends, not just in the Right’s success in hand-selecting narrow-minded elitists like Neil Gorsuch and Brett Kavanaugh for the Supreme Court, but also in its ability to place countless right-wing ideologues on the lower federal courts and to torpedo nominees they feared might betray them on key issues, like Harriet Miers. Particularly after Kavanaugh’s confirmation to replace Anthony Kennedy, it’s clear that right-wing activism has succeeded at putting hard-won rights previously protected by the Court in serious danger.

So what should progressives who care about the Court be doing to take full advantage of the opportunity the 2020 Democratic presidential primary represents?

Simply put, we should make clear that we expect any candidate who wants our support to say clearly and often that she or he would nominate fair-minded constitutionalists who value equality and justice for all and who understand the impact of the law on all Americans.

Progressives shouldn’t be supporting candidates who won’t give the same priority to nominating fair-minded constitutionalists that Republicans have given to nominating narrow-minded elitists. And candidates should remember that fair-minded constitutionalists are what the vast majority of Americans want: Supreme Court justices who respect the values of equality and justice for all, who believe everyone should have an equal voice in our democracy, who understand the real world and how the law impacts all Americans, and who interpret and apply the Constitution with today’s world in mind. Democrats shouldn’t cede the conversation to Republicans who invariably promise nominees who will do none of those things.

Progressives need to do everything in their power to ensure that Donald Trump is defeated in 2020. And that means standing up strong for the progressive vision of America that most American voters want. We won’t win by watering down our fight for universal healthcare, for a realistic minimum wage, for a fair economy, for meaningful access to higher education, and for fair-minded constitutionalists on our Supreme Court who will ensure that the values we fight for in our movement can be fairly upheld in the courts.

The far Right understands that the courts are a top tier issue. It’s time for progressives to do the same.


Election 2020, judicial nominations, Protecting the Supreme Court, Vote The Courts 2020