Written by Matt Stevens
Through an impeachment trial, a Russia investigation, an Iran crisis and other daily turmoil, President Donald Trump has repeatedly been able to point to one consistent success that has united Republicans: moving conservative justices onto all levels of the federal judiciary.
The count now stands at more than 180 judges — many of whom are endorsed by the conservative legal group The Federalist Society. About 50 of the judges sit on the nation’s appeals courts. (By comparison, President Barack Obama appointed about that many circuit court judges during his entire eight-year term.)
Trump’s ability to push through judges has been possible in large part because of the success that Mitch McConnell, the Senate majority leader, has had in holding open seats during the Obama administration and pushing nominees through after Trump took office.
On Saturday, eight of the presidential candidates still in the Democratic primary race took turns outlining their views on the federal judiciary; they argued about how and whether they would work with Republicans, if elected, and how they would protect reproductive rights and other Democratic priorities. But for all of the focus on the critical importance of the courts, the candidates recognized the limits of what even a Democratic president could do if Republicans and McConnell remained in control of the Senate.
“The best solution to the Senate is to make sure that in 2021, Mitch McConnell is no longer in the majority or preferably not in the Senate at all,” former Mayor Pete Buttigieg of South Bend, Indiana, told the gathering Saturday. He added, “This is our chance. This is our only chance.”
Why the Stakes Are High
“We are going to be, I think, just about No. 1 by the time we finish — No. 1 of any president, any administration,” Trump bragged in November, releasing a fact sheet about his success in confirming judicial nominees.
As a result, Democrats fear reversals on a wide array of labor law, civil rights and environmental cases as the courts move steadily to the right. Perhaps no issue has garnered more attention than reproductive rights, in which Democrats fear a conservative-leaning Supreme Court can significantly restrict or even remove the constitutional right to abortion.
“We have courts that are completely out of balance that have been taken over by activist judges who certainly, absolutely want to end Roe and criminalize abortion,” said Ilyse Hogue, president of NARAL Pro-Choice America, which co-sponsored the forum Saturday. “But abortion is always the tip of the spear on human rights.”
Counterbalancing Trump’s Work
At the event Saturday, Democratic candidates largely were unified in their pledge to try to balance Trump’s judicial appointments with ones of their own. Several candidates, including Sens. Bernie Sanders of Vermont and Amy Klobuchar of Minnesota, said they would be in favor of creating their own lists of qualified justices whom they would be ready to push forward on the first day of their administrations.
“Let’s give Trump and Mitch McConnell some credit,” Sanders said. “They were well organized; they knew what they were doing. As a member of the Senate, I can tell you, you know what we do every day? We vote for right-wing, extremist judges.”
As Tom Steyer, the former hedge fund executive, put it, “Someone’s got a steamroller. And they’re going right over us.” Sen. Elizabeth Warren of Massachusetts attacked the qualifications of the judges appointed by Trump, calling them “beyond unqualified” and arguing that they would not have been acceptable in previous presidential administrations.
Asked by a moderator whether she would seek to appoint young progressive justices to the court to balance conservative appointments by Trump, she said she would. “I want judges who believe in democracy, who believe in justice, who believe in the rights of individuals,” she said, “because that is the job of a justice.”
How to Work (or Avoid Working With) Republicans
The Democratic candidates were repeatedly pressed by moderators to explain how they planned to make any changes to the courts or to enshrine threatened civil rights legislation into law if the Senate remained controlled by Republicans.
The most common answer involved winning elections. “If we don’t change Congress, we’re screwed,” Buttigieg said. “Power is the only language the Senate GOP responds to right now,” he said. “Our party’s sense of fair play has come back to bite us.”
Klobuchar argued that her experience in the Senate had given her insight into how to work the levers of Congress and, if necessary, to conduct a pressure campaign to get judicial openings filled with candidates of her choosing. “It’s a game that’s been going on,” Klobuchar said. “You’ve got to be creative.”
Pledging to Protect Reproductive Rights
All of the candidates staunchly backed a woman’s right to choose, and most pledged to do whatever they could to codify Roe v. Wade, the 1973 Supreme Court case that established the constitutional right to abortion.
Warren said that over the years, the rights afforded by the case had become narrower and narrower, “like we’re standing on a ledge, and every couple of months, another rock sort of breaks loose and falls off.” And she argued that simply seeking to protect reproductive rights through the courts was no longer sufficient.
“When you’ve got a tilted Supreme Court and a tilted court system, we’ve got to start putting a lot more emphasis on what we can do through Congress,” she said. “In a democracy, when 3 out of 4 people want to see something be the law, then it’s time for us to mobilize and make it the law.”
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