Jurisprudence

Democrats Still Haven’t Learned Their Lesson About the Courts

Even after Gorsuch and Kavanaugh, the presidential candidates still don’t have a plan for Mitch McConnell.

Kamala Harris, Cory Booker, Joe Biden, Michael Bennet, Kirsten Gillibrand, and Andrew Yang.
Why don’t Democrats on the debate stage want to talk about Trump’s takeover of the federal courts?
Photo illustration by Slate. Photos by Jeff Kowalsky/AFP/Getty Images, Scott Olson/Getty Images, Justin Sullivan/Getty Images, and Jim Watson /AFP/Getty Images.

Ezra Klein was emphatically correct in pointing out that Pete Buttigieg made the single most important point at Tuesday’s Democratic debate when he noted that if Democrats really hope to achieve anything after taking back the White House, they will need to reform basic Democratic structures and institutions first. Indeed it’s fair to say that lost in the breathless reality-show silliness of the debate format is the fact that Buttigieg was the only Democratic candidate who even mentioned reforming the Supreme Court over both days of debate.

Candidates also neglected to mention the partisan gerrymandering now blessed by five Supreme Court justices or the more than 140 judges Donald Trump has placed on the federal courts. Just a quick reminder that of those Supreme Court justices, four were appointed by minority-elected presidents and confirmed by senators representing less than half of the country. And yet, Mayor Pete was the only person on the debate stage willing to say what nobody else acknowledges out loud: The courts, the Senate, and the presidency are institutions that are broken and warped by dark money and minority rule. You can call it “structural change” as Buttigieg does, or you can call it #zzzzzzzzz, but failure to talk about it doesn’t make it go away.

As the must-see TV debates were happening this week, Mitch McConnell was pushing 13 more of Trump’s judicial picks through the approval process, jamming them through in advance of the Senate’s August recess. Of those, 11 nominees have declined to say whether they believe Brown v. Board was correctly decided, an issue that I have written about more than I care to discuss, and which has gone—in a year—from an astounding outlier position, to the summer’s must-have accessory. To give you a sense of how little anyone cares that judges are now claiming that de jure racial discrimination in public education is an issue that may come before them again, it’s worth noting that many Senate Democrats are now fine voting yes on Trump’s Brown denialists. It’s embarrassing to note that two more Brown deniers will likely be confirmed this fall, and that on Thursday, two Court of International Trade judges, who also refused to affirm Brown, were confirmed to lifetime appointments, by unanimous consent, with dozens of Senate Democrats voting yea, because what was stunning in a jurist one year ago is now deemed just fine. In one instance this week Sen. Richard Blumenthal was the sole “no” vote for a judge who declined to say Brown was correctly decided. Judicial norms aren’t eroded by Republicans alone; the Senate Democrats who are now on record saying Brown is inessential show how quickly radical defiance of precedent and history becomes bipartisan and common practice.

Why don’t Democrats on the debate stage want to talk about Trump’s takeover of the federal courts? Partly, as Buttigieg was quick to note, because these are boring “structural” arguments and it’s more fun to talk about your fantasy-league policy ideas. But partly because it would require Democrats vying for the presidency to admit that they haven’t prioritized the judiciary for decades now; that they have failed to make the courts salient, or relevant, or important for voters; and that that is the reason Justice Neil Gorsuch now occupies the seat that should have gone to Merrick Garland. Connecting Trump judges directly to structural decline in Democratic chances to ever regain the presidency—by gutting unions, by gutting the Voting Rights Act, by blessing vote suppression and gerrymandering and dark money—isn’t what anyone thinks of as a voting issue, even as it becomes the issue that with every passing year hollows out the right to vote and the ultimate outcome of that vote.

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Democrats talking about all the things they plan to do once they win the Senate and the House and the presidency makes for good television. But it doesn’t change the fact that Trump and McConnell have changed the courts for our lifetimes and our children’s lifetimes, and that nobody has much of a plan to fix that. Reforming the way we select, confirm, and assess judges isn’t a third-order concern; it’s just something for which nobody seems to have a cogent sound bite. Instead, they occasionally wave their arms around while mumbling about Citizens United.

Much like the conversation around impeachment, Democratic leadership seems to be hoping that public opinion will somehow catch up on judicial reform by osmosis from pressure below. But much like the conversation around impeachment, leadership demands actual leadership, and leaders need to grapple with the fact that failing to mention Trump’s profound and lasting damage to the courts doesn’t fix the broken courts; it just wishes them away. It pretends that the millions of dollars in dark money that have been used to buy and sell the federal courts are a “process” problem that can be cured by picking the most “electable” Democrat.

What would an actual conversation with an aspiring Democratic presidential nominee about the anti-Democratic control of the courts, the Senate, and elections sound like? It would sound fairly grim, since this is a fight Democrats have lost at the Supreme Court but could win if they thought strategically about regaining the lower courts. But that in turn would require offering answers about how to fix the courts, which would require talking about them. It would have to grapple with the fact that present norms make talking about, say, court packing, quite unpleasant. But if Democratic presidential aspirants continue to stay silent on the courts, voters will continue to stay silent about the courts, and the structural, dark-money, minority-majority distortions of the present systems will go uncorrected.

We now know that a single Trump judge can gut the Affordable Care Act, or permit a wall to be built on the Southern border, or try to end Roe v. Wade. This isn’t a thing to contemplate after a Democrat wins the presidential election. It is, with every passing day, the reason to doubt whether any Democrat can win the presidential election ever again. And the same is true for the Senate, and for the House. Which is why it has to be a first-order discussion, not last. As Klein wrote: “This is what Buttigieg gets: To make policy, you have to fix the policymaking process. Some of the other candidates pay that idea lip service, when they get pushed on it. But he’s the one who places that project at the center of his candidacy.”

The Democrats on the debate stage are embarrassed to be caught out without answers to questions about battles that their constituents cannot afford for them to continue to lose. Democratic voters showed up in 2018 in part because of their horror at losing the Supreme Court. Sure, it’s embarrassing that Democrats have been badly outplayed by Mitch McConnell, who follows no norm or judicial ideal beyond ruthless pursuit of power. But it should be more embarrassing that reforming the courts has been deemed too hard to warrant a single debate question. By all means let’s talk about Trump and impeachment and “kitchen table issues” and the environment; they all matter. But the fact that the machinery of justice has been captured by a monied minority means that democracy itself is on the ballot. That should matter enough to warrant a question.