Following Kavanaugh confirmation debacle, will Democrats finally take the courts seriously?
Democrats must finally campaign against corporate interest judges who dominate the Supreme Court
As Judge Brett Kavanaugh took the stand this week, raging and obfuscating before the Senate Judiciary Committee in response to three women reporting he had sexually assaulted them years earlier, the shocking spectacle was all the more frustrating because it didn’t have to be like this.
It wouldn’t have been necessary to watch a Circuit Court judge debase himself by shouting about his newfound partisan allegiance, interrupting and sassing female senators, and refusing to answer questions about why — if he was so adamant he was innocent — the FBI shouldn’t be allowed to investigate and try to clear his name.
If only Democratic leadership had taken the courts more seriously back in 2016.
Following that election, NBC News exit polls found that the Supreme Court was the most important factor among 19% of Clinton voters. Among Trump voters, the figure was 27%. That difference suggests that a far larger percentage of Republicans were willing to vote for a candidate they didn’t personally connect with because they recognized the importance of the Supreme Court seat hanging in the balance.
This difference in priorities speaks to a broader failure of Democratic Party elites and leadership when it comes to the Federal Courts. It likely cost us the 2016 election. Will the specter of the nakedly partisan, right-wing Justice Kavanaugh finally be enough to persuade liberals not to make the same mistake in the 2018 and future election cycles?
As our constitutional system has developed, the federal judiciary is a coequal branch of the government. This means its makeup can affect broad policy. Republican Party leaders make this clear to conservative voters; their liberal counterparts do not.
Republicans prioritize the courts in a way that Democrats simply do not. Obama was not nearly as diligent about appointing judges to the federal judiciary as Trump has been. This is obviously not because Trump has some deep understanding of the role of the coequal branches of government — certainly not more than Obama, a constitutional law professor — but because of their respective party elites recognize different priorities.
As a result, in 2016, I found myself frequently trying to persuade on-the-fence liberal voters to support Hillary Clinton’s campaign for the sake of the courts. My arguments largely fell on deaf ears.
My non-lawyer friends insist that the Democratic Party declines to focus on the courts because the issue is too complex and diffuse. They say that a return to Lochner-era economics policy and unitary executive theory, and their accompanying systemic inequality and creeping authoritarianism, are too complex and remote to effectively campaign on.
Meanwhile, however, the conservative movement has successfully impressed upon voters — particularly in their base — the political salience of judicial appointments, and has taught them to parrot a fallacy ridden legal theory called “originalism.”
They have done this by using a handful of specific cases — most notably Roe v. Wade — as a Trojan Horse to ram through their broader, less popular judicial philosophy. The founders of the Federalist Society and other right-wing groups don’t really care about abortion. Instead, conservatives and their financial backers, including the Koch brothers and the Mercer family, support right-wing judges because they strike down regulations, erode consumer protections, and whittle away at laws aimed at guaranteeing employee welfare.
In short, they strike down any policies aimed at making companies pay the true cost of doing business. As a result, opposition to Roe became the linchpin for attacking a broader class of “judicial activism” that was really a smokescreen designed to dismantle the regulatory state.
In recent years, the Roberts Court has also functionally legalized bribery; gutted voting rights, disenfranchising minority voters; and further assaulted consumer rights, employee rights, and unions.
Shockingly, in 2016, researchers found higher levels of approval for the Supreme Court among Democratic voters compared to their Republican counterparts. According to the Cooperative Congressional Election Studies (CCES) survey, 56 percent of Democrats approved of the Supreme Court, compared with just 30 perfect of Republicans. Among Democrats, 30 percent disapproved and the rest weren’t sure, compared with 60 percent of Republicans who disapproved and the rest weren’t sure.
Given that 2016 was the year a self-proclaimed socialist made a credible run at the White House, and in doing so pushed the Democratic Party platform significantly to the left, it’s unthinkable that so many Democratic voters supported a court whose jurisprudence was completely out of alignment with their own values.
Following Justice Antonin Scalia’s death and Senate Republicans’ unprecedented move of blocking President Obama’s nomination of Merrick Garland to the Supreme Court, the 2016 election would not only determine which party controlled the White House and Congress, but which faction controlled the Supreme Court. Democratic leaders should have spent all of 2016 highlighting the Supreme Court’s horrific decisions, and emphasizing the role that Scalia’s replacement would play in either expanding these corporate, anti-democratic rulings or reversing them.
The good news is that there exists a perfect case that Democratic and liberal jurists can use to follow a similar playbook, making one clear, compelling legal decision the cornerstone of a broader judicial strategy.
That case is Citizens United.
In terms of factual background and effect, this case is widely — and rightly — loathed. Initially argued on narrower grounds, it was re-argued more broadly to fully gut the bipartisan McCain-Feingold Act regulating campaign finance. The result has been a huge influx of dark money in politics, further tilting politicians of both parties to cater to the so-called donor class of millionaires and billionaires.
The reality is that Citizens United was just one star in a larger constellation of regressive campaign finance rulings. That means reining in the problem of money in politics will be more complicated than simply overturning the decision. Still, the case represents the perfect entry point for Democratic leaders. The ruling represented a huge change in the law, not the “judicial restraint” conservatives claim they want to see from the Court.
But more importantly, broad support exists for overturning Citizens United and reining in campaign spending overall. The problem, however, is that voters in general, and Democratic voters specifically, are not necessarily aware that reversing the Citizens United ruling depends entirely on changing the makeup of the Supreme Court.
Despite his quixotic — moderate — support for certain liberal issues such as gay marriage and abortion, Kennedy was one of the Court’s most right-wing Justices on economic issues. He wrote the widely loathed Citizens United decision, and during the more recent Janus oral arguments, he functionally argued that unions’ historic electoral support for the Democratic Party was reason enough to cripple them. Even his retirement decision indicates that at his core, Kennedy was a partisan Republican with an occasional libertarian jurisprudential streak. So the only way to overturn the Court’s unconscionable right-wing decisions is to replace Kennedy — or any of the four other Conservative justices — on the Supreme Court.
It is precisely here that the Democratic leadership has failed. We had that opportunity in 2016 and we missed it. Had Garland been confirmed, he would have been a fifth vote to overturn Citizens United. He would have been a fifth vote to outlaw partisan gerrymandering. A fifth vote to protect unions in the Janus ruling.
I frequently see candidate websites listing “overturning Citizens United” as a campaign position — a popular one at that — but rarely if ever do the candidates explain that this requires changing the makeup of the Supreme Court.
What is mind-boggling to me, is that the strategy for this approach is clearly before our eyes with the method used by Republican leaders since President Nixon first campaigned against the “activist Warren Court”. Democratic candidates and leaders should center every campaign around the fact that the Court is historically right-wing and out of step with the American public on Citizens United and various other issues. Instead of parroting right-wing claims of “judicial activism,” we could (accurately) refer to these compromised Federalist Society ideologues as “owned corporate-interest judges.” Imagine if every Democratic candidate and leader used these modifiers when discussing the corporatist right-wing justices on the US Supreme Court. In the next breadth you would say, “elect Democratic senators and Presidents who will promise to appoint fair justices to the courts — ones who will stop this insane encroachment on our democratic system and values.”
While conservatives do a bait-and-switch, Democratic leaders don’t even need to be so deceptive. There is room to explain that the activist right-wing judiciary has enacted a broad set of rulings that entrench financial and business interests at the expense of workers and voters, with Citizens United simply being the most high-profile. But, again, by framing the issue around one already salient and unpopular decision, you can avoid getting into the complexities of our federal judicial system, and instead focus on the case that most animates the base as emblematic of a larger issue.
Democratic Party leaders need to emphasize the courts with the same gusto as their GOP counterparts. No more equivocating about norms and mores in the appointment process. The Republicans ignore them and stack the courts accordingly. Instead, Democratic leadership needs to state repeatedly and emphatically that a right-wing “corporate interest” judiciary is gutting government regulations to protect workers, healthcare, and the environment, and the only way to combat that is to elect Democrats committed to appointing judges who will overturn corporatist rulings like Citizens United.
This is a failure of Democratic Party leadership, and if it continues, it’s time to consider new party leaders.
