Democratic presidential contenders are facing increasing pressure to detail their plans for filling federal court vacancies amid angst over President Trump‘s success in packing the benches with conservative judges.
Trump has been able to get his appointees confirmed at a pace that surpasses that of any recent administration. The Senate left town the week before Christmas after confirming 12 more of Trump’s judicial appointees, bringing the total number of lifetime judges appointed in this administration to 187.
For many on the left, the issue of recapturing the courts has become more urgent as those judges make their mark on a host of high-profile issues.
Last week, a three-judge panel on the Fifth Circuit Court of Appeals ruled that a key tenet of President Obama’s Affordable Care Act, the mandate requiring everyone to have health insurance, is unconstitutional, setting up a likely fight in the Supreme Court. One of the judges who joined the ruling, Kurt Engelhardt, was appointed by Trump in 2018.
“Because of a Trump-appointed judge who cast the deciding vote in that ruling, health care is at risk for millions of Americans,” Marge Baker, executive vice president at the liberal group People for the American Way, said in a statement on Thursday.
“The next president faces a monumental task in ensuring that the people appointed to our federal bench are fair-minded constitutionalists who understand their role is to uphold rights for all of us, not to serve the agendas of big corporations and far-right special interests,” Baker added.
Most notably, Trump and Senate Majority Leader Mitch McConnell (R-Ky.) have already shifted the nation’s highest court to the right with two appointees, Justices Neil Gorsuch and Brett Kavanaugh. Those moves gave the Supreme Court a conservative majority in a term with expected rulings on Obama-era programs like the Deferred Action for Childhood Arrivals immigration policy and the Consumer Financial Protection Bureau, as well as cases involving hot-button issues like gun control, LGBT workplace rights and abortion.
That’s led to worry among liberals who want to hear more from the 2020 primary candidates about the federal bench.
Former Senate Majority Leader Harry Reid (D-Nev.), who led congressional Democrats through much of the Obama administration, penned an op-ed in the Salt Lake Tribune earlier this month urging his party’s presidential candidates to address how they would handle a court system that seems poised to defeat any ambitious progressive agenda they pursue.
“Our sea levels are rising, our kids are undergoing active shooter drills before they learn to read,” Reid wrote. “And now, this stolen Supreme Court will invent reasons to gut any effort big enough to deal with those problems.
“That must change,” he added. “Any candidate who wants to lead our party needs a plan to make this change happen.”
But that sense of urgency has been absent from the primary race so far. The courts have only been brought up by debate moderators twice this year in brief rounds of questioning. And the candidates have largely left the courts out of their campaign platforms.
During the most recent debate, Sen. Amy Klobuchar (D-Minn.), a member of the Judiciary Committee, acknowledged that the next Democratic president would have to be more aggressive at filling out the courts than previous administrations.
“That is one thing that we all learned from when President Obama was in, and that was that he was dealing with an economic crisis and it was hard to do it right away,” Klobuchar said. “But we have to immediately start putting judges on the bench to fill vacancies so that we can reverse the horrific nature of these Trump judges.”
Mayor Pete Buttigieg of South Bend, Ind., has set himself apart from the rest of the field by making an explicit call to reform the courts, a proposal that includes an elaborate plan to expand the number of Supreme Court justices to 15 and to impose term limits on the judges.
Judicial activist groups on the left see some signs of hope from the Democratic Party. While Senate Democrats have had little success in obstructing Trump’s judicial nominees, it’s been a year since the party has agreed to fast-track any of the judges through unanimous consent packages.
But for some activists, the progress in making the courts a more substantial issue for Democratic candidates and voters is not enough.
“It is a positive sign that the candidates have now been asked about the courts twice in the past three debates, but the plans they’ve put forward still come up way too short,” Brian Fallon, the executive director of Demand Justice, said in a statement after the debate. “It won’t be enough to simply win the next election and follow the old playbook for appointing judges, as some candidates seem to think. The next Democratic president needs a big, bold plan to rebalance our courts.”
Demand Justice in October released its shortlist of potential Supreme Court picks, part of an effort to encourage candidates to speak more about the issue. The list included a diverse array of activists, judges and scholars, with none of the corporate ties that are characteristic of many high-profile jurists. The group also urged candidates to share their own shortlists, but so far no campaign has done so.
The courts have been a much higher priority for Republicans than Democrats in recent years. Democrats are still outraged that McConnell refused to consider former President Obama’s nominee to replace the late Supreme Court Justice Antonin Scalia when he died in 2016. McConnell argued that it would go against precedent for the Senate to confirm a justice ahead of an election.
That seat was left vacant for more than a year until the Senate confirmed Gorsuch, Trump’s first appointee to the court. But Kavanaugh, Trump’s second pick, inspired even more backlash among Democrats given the bitter partisan fight that enveloped his confirmation after he was accused of sexually assaulting a woman when the two were in high school.