September 12, 2019
Democratic Debates: Time to Ask About America’s Courts
Senior Fellow, Brennan Center for Justice and Distinguished Visitor from Practice, Georgetown University Law Center
This blog is a modified version of “Democratic Debates Round 2: Time to Ask About America’s Courts” originally published on Just Security.
America’s courts are where so many policies, issues, and freedoms are won or lost. The Democratic debates provide a crucial opportunity for the U.S. presidential primary candidates to declare what they would do in office to shore up at least the federal bench in this vital branch of our democracy.
Due to persistent overreach by the Trump administration and the Republican Party more generally, courts across the country have been forced into the role of stalwart for the rule of law. They have been forums where the fundamental rights of women, communities of color, and LGBTQ Americans have been recognized and upheld. In other instances, the courts have mostly upheld long-overdue policies like affordable health care and consumer protections enacted by Congress and legislatures.
This is progress to most, but for America’s far right, the buffering of the courts against them and the courts’ support for inclusive policies is a call to arms. One problem the far right has, however, is that all these so-called liberal policies and proposals — even the ones they strangely dub “socialist” — enjoy broad support from Americans and in the Constitution.
Large majorities of Americans, for example, support humane immigration policies and protections for “dreamers.” Similar numbers support gun control measures like universal background checks. Minimum wage laws, environmental regulations, and consumer protections are wildly popular. The same goes for the Affordable Care Act. And then there is the swelling public support for expanding voting rights and protecting our next election against foreign interference.
This same laundry list of policies that Americans routinely support also has become a hit list of policies the far right would like to block or undo.
But normal legislative pathways haven’t worked for them, so they’ve turned to the courts. An emboldened Republican Senate majority is moving aggressively to pack the courts with conservative judges ahead of the 2020 elections. The GOP and the Trump administration have installed a historic number of judges for this point of a presidency, with 150 nominees confirmed by the Senate since Donald Trump took office.
Financed by a secretive network of donors, this effort has had a demonstrable impact on the nation’s courts, resulting in an increasingly reactionary Supreme Court and business-dominated state courts, with far-reaching impacts on social justice.
And conservatives have infused the importance of the courts into their political strategy, so much so that the Republican Party now sees the judiciary and its rulings as a key voting issue.
The political left has largely ignored the change happening before their eyes. And we’re still asleep at the wheel, with many finding it distasteful to mix politics and judicial selection, even in the face of an ever-more conservative judiciary.
The results of the right’s efforts will affect virtually every issue Americans care about. As we saw in the Supreme Court decisions this year, the right’s overtaking of the Supreme Court would undo LGBTQ rights, reproductive rights, environmental protections that have cleaned up the air and water, and many federal regulations. In short, if the courts continue their right-wing march, we will be returned to an era when only white, male property owners were given full protections and freedoms.
The Democratic candidates lining up to take on President Trump should lay out their specific “Day One” plans for tackling this crisis in the courts.
Tonight is a good time to start. When the Democratic candidates face off in their third debate, moderators should raise what will be one of the most pressing issues facing the next president. They can simply ask, “Republicans in the Senate are confirming President Trump’s judges at a record pace, shifting the judiciary to the right; what is your specific plan for countering that trend?”
Americans are clamoring for courts that understand that the Constitution of “We the People” has been greatly undermined, and want judges with a core commitment of advancing democracy, equality, and the rule of law for all, including those not previously included as “the People” under past interpretations of the Constitution.