washington, dc

The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

May 8: Democrats Should Prioritize the Judiciary Like Republicans Have

Something happened in Congress this week that reflects some important partisan dynamics, as I explained at New York:

At the beginning of the Senate Judiciary Committee’s confirmation hearing for DC Court of Appeals nominee Justin Walker, Democrats suggested it said a lot about Republican priorities that the Senate was called back into session during a pandemic to speed the ascent to the higher ranks of the federal judiciary this 37-year-old Brett Kavanaugh protégé from Mitch McConnell’s home state, CNN reports:

“During opening statements, Democrats on the committee also blasted McConnell for focusing on the nomination amid the pandemic, with Sen. Dick Durbin of Illinois laying out a ‘lengthy’ list of things he said the panel could be doing instead to address the crisis.

“’We’re in the middle of one of the greatest public health crisis in the history our nation. We’re sitting in a committee with jurisdiction in so many critical areas when it comes to this crisis and instead Sen. McConnell is unwilling to set aside his wish list fulfilling the courts,’ Durbin said.”

Durbin was right. McConnell could not have cared less about the criticism. And therein lies an important partisan difference these days.

McConnell’s judicial “wish list” really is central to his conception of what he is in Washington to do. And it is the iron cord that binds him to Donald Trump and to the Republican Party: moving the judiciary — particularly the Supreme Court, but lower courts, too (and the DC Circuit is considered the top rung of the latter of “lower courts”) — in a sharply ideological direction.

It was not universally understood at the time, but arguably the turning point in Trump’s improbable 2016 campaign, creating unquestionably the one promise he has kept as president, occurred in March of 2016, as Time reported then:

It was a crucial step in reconciling conservatives to his candidacy, and his presidency, as I noted at the time:

“[S]omebody is giving him good advice about how to address the concerns of conservatives about his ideological reliability.

“Of all the things they fear about a President Trump, the most urgent is that he will throw away a once-in-a-generation opportunity to reshape SCOTUS and constitutional law. And of all the temptations they have to hold their noses and support the man despite all of his heresies and erratic behavior, the most powerful would be the confident belief that at least he would position the Court to overrule Roe v. Wade, protect Citizens United, overturn Obama’s executive orders, eviscerate regulation of businesses, inoculate religion-based discrimination, and maybe even introduce a new Lochner era of constitutionally enshrined property rights. This would be a legacy that might well outweigh the risks associated with a Trump presidency.”

He ultimately released his SCOTUS list in May of 2016, with, we now know, Leonard Leo, executive vice-president of that guild of right-wing legal beagles, the Federalist Society, being the principal vetter. He amplified his list in September of 2016 (an act that brought around conservative holdout Ted Cruz, among others) and among the new prospects were Neil Gorsuch and Brett Kavanaugh. The Federalist Society’s involvement brought directly into Trump’s judicial selection process an organization that had been building a pipeline to the judiciary since its founding in 1982. And it provided a simple and essential litmus test for Trump with conservatives — particularly the conservative Evangelicals devoted to the goal of reversing crucial liberal precedents creating a right to abortion and to same-sex marriage — he would either pass or fail. Exit polls showed that over a fourth of Trump voters called his impact on SCOTUS the single most important reason they voted as they did.

He passed with the appointments of Gorsuch and Kavanaugh to SCOTUS, and is burnishing his report card with lower-court appointments. In all cases, he is choosing judges who are relatively young (Gorsuch was 49, Kavanaugh 53 upon appointment; the average age of the pre-Trump SCOTUS justices on the court is now 71; the average age of his Court of Appeals appointees is 48, well under the average for recent presidents) and thoroughly vetted. No significant effort is being made to appoint judges with bipartisan support. But then those who relied on Trump’s promises didn’t want or need such efforts.

If Trump has bonded with conservatives by his judicial appoointments, Mitch McConnell has bonded with Trump by confirming them as efficiently as he can. The suspension of Senate proceedings due to the coronavirus pandemic interrupted this crucial process. So starting it back up as quickly as possible made perfect sense from the Republican point of view. In case any Republicans are tempted to stray from the party harness in November, they will be reminded as regularly as possible that on this one measure of success that lives on for decades, Trump and his party have delivered and will continue to do so for the next four years.

Do Democrats care as much about the judiciary? Some do, particularly women, LGBTQ folks, and members of groups in danger of losing their voting rights. But Democrats did not “weaponize” judicial appointments in 2016 anywhere near the extent Republicans have, and while Trump and McConnell have won test after test of their resolve, Democrats lost theirs by failing to find a way to force the confirmation of Supreme Court nominee Merrick Garland for the last 11 months of the Obama presidency.

As Republicans cheered the progress of their child-judge Walker to the DC Circuit, Democrats were praying for the health of 87-year-old Supreme Court Justice Ruth Bader Ginsberg, who participated by phone in oral arguments from a hospital bed where she was recovering from a flare-up of a chronic gallbladder ailment. It was a grim reflection of each party’s long-term positioning in the effort to shape the judiciary and, through it, constitutional law.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.