Judge Not

Why won’t progressives fight for federal judges?

Paul J. Watford.
Paul J. Watford

Photograph courtesy of Munger, Tolles & Olson LLP © 2011.

There has been an odd dance-off going on lately about who loves the Constitution more. The Tea Party loves the Constitution so much it wants to marry it. (Oh, but if only that were legal.) A number of prominent liberals, meanwhile, have been bemoaning the way Democrats have ceded the entire Constitution to conservatives when everybody knows its heart belongs to progressives. I’m right there with them, of course. If loving the Constitution is wrong, I don’t want to be right.

And now, if the GOP’s presidential hopefuls are any indication, it seems this new spike in fetishizing the Constitution comes from many of the same people who apparently loathe everything about the federal courts and would love to limit the Supreme Court’s jurisdiction to traffic disputes. Worshipping the Constitution while vilifying the judges entrusted to protect it makes no sense, but at least Republicans understand that if you care passionately about one, you should care passionately about the other. That is the mental leap that the political left seems unable to make.

Last week, for example, President Obama nominated yet another highly qualified, intelligent, and competent attorney, Paul Watford, to fill one of several openings on the 9th Circuit Court of Appeals. This was just the latest in a string of the more than 30 nominations he’s made to the federal courts in the last six months. Yet most Democrats have paid no attention to this news, and those who have are already throwing up their hands and declaring the nominations doomed. In other words, progressives now seem to respond to news of the war on Obama’s judges by doing nothing more than whining about how they have lost the war on Obama’s judges.

The lack of concern about or willingness to fight for judicial nominees by one party is a serious weakness in our current political system. If one side cares intensely about the courts and the other side doesn’t, what you get is a long-term bias in one direction. This growing imbalance shouldn’t just worry progressives. It should alarm anyone who believes a range of voices on the courts is essential.

Yet Democrats have a nagging blind spot for fully comprehending that when it comes to advancing the issues they care about, judges aren’t just important but indispensible. If disillusioned Democrats are wondering whether it matters whether President Obama gets a second term, they should look no further than the aging faces of the nine justices at the Supreme Court. And the thousands of demonstrators at Occupy Wall Street need to understand that many of the very things they’re protesting against are the direct consequences of decades spent by progressives deprioritzing judicial appointments.

When it comes to the importance of the courts, modern Republicans just get it. Sure, there was a time long ago when Democrats battled for the courts, too. President Franklin Delano Roosevelt famously sought to pack the court with progressive judges who would uphold his New Deal legislation. But for the last 30 years it has been the GOP demonstrating the laserlike focus on taking over the courts. And it’s worked. Their strategy was simple and effective—aggressively push through large numbers of nominees who are to the far right of their predecessors, while defensively blocking as many left-leaning nominees as possible. The Democrats’ response, meanwhile, has been to offer up handfuls of relatively moderate nominees and then cross their fingers, hoping the other side will let a few slip through. To be sure, there are structural impediments to seating Obama judges, mostly in the form of arcane senate rules, including the filibuster. But Bush’s judges met the same impediments and crashed through them. Obama’s judges can’t seem to get past “Go.”

The reason for this mismatched face-off is not one of competence—Republicans are not “better” at the judge game. The Democratic Party is filled with extremely intelligent insiders who understand the judicial nomination process and could make it work if given their marching orders. It is instead about priorities and values. Rank-and-file Democrats are too satisfied with what they see as the status quo when it comes to the courts. They find reassurance in the rights secured since the New Deal, including the Warren Court precedents involving racial equality, women’s rights, separation of church and state, and criminal due process. While Republicans rally around the big-picture issues of abortion, guns, and religion, Democrats take comfort in what they believe the law to be. They see prospective GOP nominees taking direct aim at those very precedents, but don’t think they are serious.

What modern Democrats crave instead are legislative victories—health care, immigration reform, social support systems, and environmental protections. And that leaves little left over in the political capital checking account to spend on judges. Democrats, of course, aren’t going to kick a liberal court out of bed for eating crackers, but they don’t want to push for one at the expense of other matters. In the first two years of the Obama Administration alone, the President and Congress could have appointed a slew of new federal judges, but they chose to work on other things. These other things, while important, came at the expense of judges.

And that is what brings us to where we are today.

While Democrats have been mesmerized by the shiny lights of Congress, much has changed. The “status quo” simply isn’t the status quo anymore. Many of the left’s most treasured rights have been quietly yet greatly eroded, and those that remain are far more precarious than many realize. The constitutional right promised in Roe v. Wade has been whittled away to a mere illusion for many women and to nothing at all in some states. The beloved Brown v. Board of Education ruling has been significantly narrowed to mean school districts can be legally prohibited from ensuring racially integrated classrooms. Affirmative action has all but disappeared except in very narrow circumstances.

Numerous other changes—changes that might sound academic but have significant real-world implications—have slipped by unnoticed. The Rehnquist and Roberts Courts have placed severe limitations on whether plaintiffs like environmental groups, wronged employees, or victims of police brutality can bring their case to court at all. They’ve further strengthened states’ abilities to escape federal legislation such as the Americans with Disability Act. Their interpretation of both the Commerce Clause and Section 5 of the 14th Amendment, meanwhile, has curtailed Congress’ powers to pass legislation at all. These legal details are not sexy, but they matter to a Progressive view of the Constitution. They matter a lot.

Progressives’ misplaced love affair with legislative change has led to many so-called “victories” that were incredibly hard-won yet ephemeral. What good was it to pass health care legislation if the court is going to knock it down? Why bother with environmental protections if the court is going to declare the EPA lacks the power to enforce them? A law protecting abused women helps no one when the Court says Congress didn’t have the power to pass it.  A basic truism is at work here—election cycles may come and go, but federal judges have life tenure.

It’s too much to say, of course, that Democrats don’t care at all about the courts. They can still get themselves sufficiently riled up whenever there’s a vacancy at the Supreme Court. But Republicans also understand that the true battleground is on the lower courts, where one-third of the current judges were seated by George W. Bush. The district courts and, especially, the appellate courts are where future justices are groomed. It is before these courts that the factual record is carefully built and key arguments are framed. Most importantly, the lower courts matter because the Supreme Court hears fewer than a hundred cases a year. For the thousands of others litigants, the road to justice dead-ends at the federal courts of appeal.

Democrats have taken their eye off the ball on judicial appointments for far too long. It took decades for Republicans to build the court system now in place, and it may take many years to rebalance it. But the time to start is yesterday. Until Democrats start slapping “It’s the courts, stupid!” stickers on their rear bumpers, their elected officials aren’t going to change. Until progressives say, “I’m not going to stop writing my senator until Paul Watford gets a hearing,” Obama judges will be slow-walked through hearings and wait months for a floor vote that might never come. We all love the Constitution—it’s an easy document to love. Perhaps the best way to show that affection is to pay long overdue attention to the people given the vital job of safeguarding it.