This election cycle, Democratic voters are realizing the importance of the federal courts with a new sense of urgency. This is partly because of court advocacy groups, but also the speed at which President Donald Trump’s nominations have been confirmed.
With the help of Senate Republicans, Trump has appointed 187 judges to lifetime positions on federal courts. There, they’ll help shape the law for decades.
But with so much to address, candidates don’t often have a chance to talk about everything important. During the December debate in Los Angeles, two of the seven presidential candidates on stage were asked about the courts, Sen. Amy Klobuchar and Mayor Pete Buttigieg.
The topic got less than five minutes.
All of the Democratic presidential candidates have talked about the courts, in their stump speeches and in press gaggles.
Still, the discussion has left groups that focus on courts with a desire for more.
“It’d be instructive if those running for president offered a comprehensive plan, not platitudes, on how to make the judiciary more reflective of their values,” said Gabe Roth, executive director of Fix the Court.
Roth and Fix the Court advocate for reforms like Supreme Court term limits and making court proceedings more transparent by allowing cameras in courtrooms.
“To this point, all that most of them have said is they’d be ‘open’ to ideas like adding justices to the Supreme Court or ending life tenure,” he said. “Instead, putting meat on those bones would show voters that candidates are serious about restoring faith in the third branch.”
Both Buttigieg and Klobuchar emphasized the importance of the courts, and they advocated for filling judicial vacancies quickly and with fair-minded judges.
But no one addressed the fundamental problem with that point of view, which is that almost 200 judges are already on the bench, serving life terms.
“Mitch McConnell and Donald Trump cannot stop talking about judges. Yet, with few exceptions, Democrats rarely make clear that they, too, recognize how critical judges are,” said Daniel Goldberg, legal director at Alliance for Justice Action Campaign. “Most Americans, if they knew their horrific records, would not support Trump’s nominees, and Democrats can do a better job of highlighting the damage they are already doing to the rule of law.”
Goldberg said candidates should highlight judges who have fought protections in the Affordable Care Act. He said it’s another example of Republicans trying to undermine the health care coverage millions of Americans enjoy.
“It is imperative that candidates make clear that, if elected, they will prioritize the courts,” Goldberg said. “On day one, they should be ready to nominate individuals with clear records of fighting for workers, consumers, women, the LGBTQ community, communities of color, and clean air and water.”
Buttigieg has talked before about his plans for the courts, including reforms like expanding the Supreme Court to 15 justices.
When asked about how he would pick potential judges, Buttigieg said he had a list of requirements in mind, like judges who support reproductive rights, expanding equality and respect for the rule of law.
“I will not only appoint judges and justices who reflect this worldview, but begin moving to reform the body itself, as our country has done at least half a dozen times in its history, so it is not one more political battlefield every single time a vacancy comes up,” he said.
In her answer, Klobuchar listed some current judges who are models for the people she would appoint, namely Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg.
To back up her point, she mentioned the judges she recommended to President Barack Obama: Minnesota Supreme Court Justice Wilhelmina “Mimi” Wright and Susan Richard Nelson, who served as a magistrate judge before her confirmation.
“I did that because I knew they were qualified people to take those jobs. You need to do it not only with the right judges that have that know-how, you also have to do it right away,” Klobuchar said.
“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,” she said at the debate.
Even if a Democratic president were able to pass legislation through Congress, legal challenges that reach these right-wing judges could still block, overturn or weaken it. The dynamic would serve as an obstacle for anything a new president wanted to pass.
“As the recent Fifth Circuit ruling jeopardizing the Affordable Care Act made clear, Trump’s hijacking of our courts will endanger any and all progressive policies for years to come — unless something is done to fix it,” said Christopher Kang, chief counsel for Demand Justice.
“Most of the candidates have expressed openness to reforming the Supreme Court in some form or another, but the time has come to move past openness and toward concrete plans,” he said. “We need to know how candidates would rebalance the federal judiciary and who they would nominate to the Supreme Court so voters can determine who is serious about getting things done.”