Three years after Donald Trump won the presidency partly by making judicial nominations a centerpiece of his candidacy, liberal advocacy groups are struggling to get 2020 Democratic hopefuls to stress the importance of the third branch of government on the campaign trail.
“Our mission is to never repeat what happened in 2016 again,” says Brian Fallon, former press secretary for Hillary Clinton’s presidential campaign and now the director of the progressive advocacy group Demand Justice.
Progressive groups that focus on the courts say the issue resonates with Democratic voters more than ever. During the Trump presidency, his administration has confirmed nearly 150 federal judges, including two Supreme Court confirmations—one bitterly contested, the other seat left open by Senate Majority Leader Mitch McConnell’s refusal to consider a nomination by President Obama—that cemented a conservative majority on the nation’s highest court. Justice Ruth Bader Ginsburg, 86, was treated for cancer this summer, and polling data conducted before the 2018 elections suggests the Supreme Court may have animated Democratic voters more than Republicans in the midterms.
Yet it’s been an uphill battle for the progressive judicial groups pressing candidates to talk about the courts. In five hours of debate between 2020 Democratic candidates in July, for example, judicial nominations weren’t brought up once. (At the debate in June, moderator Rachel Maddow asked a question about abortion rights at the Supreme Court, but not specifically about judicial nominations.) No Democratic candidate has released a list of judges they would consider nominating to the Supreme Court the way Trump did in 2016.
“They clearly need to step up,” says Nan Aron, president of Alliance for Justice Action Campaign. “Too often the Democrats have ceded to the right the federal courts, allowing them to energize their base. Judges make decisions that affect every aspect of our life, and by ignoring this topic, they do so at their peril, because Americans do care.”
Aron’s group is among several on the left urging Democratic candidates to talk about the importance of judges on the trail. Alliance for Justice Action Campaign is preparing talking points on Trump’s judicial nominees and reports on decisions made by the judges the Trump administration has confirmed. People for the American Way has launched a campaign called Vote the Courts 2020 that plans to partner with local organizations to make sure questions about the judiciary are raised at candidate town halls, and is working to organize a candidate forum focused on the courts. Demand Justice is having local organizers in Iowa and New Hampshire ask questions about judges at candidate events while filming the answers, and demanding that the next Democratic president refuse to appoint any former corporate lawyers to the bench.
Some 2020 Democrats have responded, in ways large and small. South Bend, Ind. Mayor Pete Buttigieg has released a plan to reform the Supreme Court, in part by increasing the number of justices from nine to 15, promoting the issue to a more significant part of his platform. Candidates including California Sen. Kamala Harris and former Texas Congressman Beto O’Rourke have also suggested they would be open to expanding the size of the Court.
Others on the trail have talked about judicial issues too. Massachusetts Sen. Elizabeth Warren endorsed the Vote the Courts project and promised to nominate “fair-minded constitutionalist judges instead of far-right extremists.” Minnesota Sen. Amy Klobuchar, a member of the Judiciary Committee, said in August that the party had to be prepared to “hit the ground running on Day One” in nominating federal judges.
But the prevailing view among progressive advocacy groups is the Democratic candidates aren’t doing enough to focus on the issue. “We’re seeing some engagement,” says Marge Baker, executive vice president at People for the American Way. “But we want more.”
Baker and others say the candidates need to do a better job framing the issues they campaign on around the role judges play. “Every single issue that the candidates are talking about ultimately goes back to, are they going to have judges on the federal bench who enforce the rights that they’re advocating for?” says Baker. “Or who will tear it down every step of the way?”
Liberal judicial activists say the battle over the confirmation of conservative judge Brett Kavanaugh to the Supreme Court in 2018 underscored for Democratic voters the importance of judges. “Even though Kavanaugh was confirmed, that is proving to have been a singular moment in changing at least Democrats’ attitudes towards the court,” says Fallon.
Polling supports this idea. In a Pew Research survey conducted six weeks before the 2018 midterm elections, amid allegations of sexual misconduct against Kavanaugh, more Democrats than Republicans said that the Supreme Court would be a top consideration in their vote.
Traditionally, the right has been more focused on judges than the left, with its base enthusiastic about the issue and a better-funded constellation of outside groups like the Federalist Society creating a pipeline for conservative judges. Exit polls in 2016 showed that 21% of voters said Supreme Court appointments were the most important factor in their vote, and 56% of those voters cast a ballot for Trump.
The Trump campaign plans to keep judges in the foreground of the President’s re-election effort. “It’ll be an important part of the campaign because it’s part of the record of success of President Trump,” says Erin Perrine, deputy communications director for the Trump 2020 campaign. Perrine notes that Trump’s judges list brought “a new energy” to the 2016 campaign.
Already, outside groups on the right are putting pressure on the Democratic candidates to publicly release a list of judges they would consider nominating to the Supreme Court, just as Trump did. Judicial Crisis Network, a conservative judicial advocacy group, spent $1.1 million on a two-week national ad campaign in June calling on the Democratic candidates to put out lists of judges. “Running for president with a list of secret court picks,” the ad says. “What are they hiding? Tell Joe Biden: Trump released his list, why won’t you?”
Demand Justice plans to release its own list of judges for Democratic candidates to consider, and wants candidates follow suit. Alliance for Justice Action Campaign and People for the American Way aren’t encouraging candidates to release public lists of judges, but want candidates to be more vocal about the type of judges they want to nominate.
Some Democratic candidates are. “My litmus test is I will never appoint any, nominate any justice to the Supreme Court unless that justice is 100 percent clear he or she will defend Roe v. Wade,” Vermont Sen. Bernie Sanders said when asked about the landmark abortion case at the first Democratic debate.
Still, speaking at an event in April, Sen. Kamala Harris, a Democratic presidential candidate and member of Judiciary Committee, cut to the core of the challenge for Democrats. “Often in every election cycle,” she said, “[the Supreme Court] is the most important, but often unfortunately the least persuasive reason for people to care about the outcome of the election.”