Jurisprudence

“There Is Nothing to Gain From Half Measures”

The president of the American Constitution Society explains what Democrats are doing to win back the courts.

Interior of the Supreme Court chamber
Supreme Court of the United States

While Donald Trump failed to pass much signature legislation and largely failed to remake the federal government in ways that cannot be immediately corrected, his landmark achievement will be his lasting contributions to the federal judiciary. Breaking the records of his predecessors, Trump seated 234 judges on the federal courts in four years, including three at the Supreme Court. That means that whatever Biden and the Democrats try to do in the coming months and years, most of the efforts will ultimately be in the hands of life-tenured judges, 30 percent of whom were named by Trump. Those judges are overwhelmingly very young, very white, and very male. A preview of what’s likely to come happened just last week, when a federal judge tapped by Trump blocked Biden’s 100-day deportation “pause” with a nationwide injunction.

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The question is what Biden and the Democrats can and will do in response to Trump’s enduring legacy. The new president is already making moves that indicate he understands that some of the norms and conventions that guided Barack Obama in building the judiciary are dead and gone. This week the Washington Post reported that the Biden administration is doing away with the formal American Bar Association vetting process that Democratic presidents used to abide by, because it was jettisoned by Republican presidents and because it simply lengthened the process. Biden is also hustling to put together the bipartisan commission he pledged would examine structural reforms for the Supreme Court and the federal judiciary. Former Wisconsin Sen. Russ Feingold is a leading Democrat attempting to strengthen the left’s ability to appoint judges, to match the pace the right has set. He is the president of the American Constitution Society, the left’s answer to the Federalist Society (we spoke last year when he assumed the post). Given the potential of the current moment for big changes in the judiciary, I wanted to ask him what happens next. Our conversation has been lightly edited for clarity.

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Dahlia Lithwick: It’s clear the Federalist Society was perhaps the biggest winner of the last four years, realizing its fondest hopes in terms of stacking the bench and becoming the judicial kingmaker. It’s also clear that the Federalist Society will do very little soul-searching about the more democracy-shattering aspects of its membership in the Trump years. Is the progressive plan going to be to try to replicate the Federalist Society monopoly over judicial decisions and decision-making, to sideline the group, or some third, more complicated route? What does the move from defense to offense look like on the courts?

Russ Feingold: First, you are absolutely right about the Trump years. There simply is no precedent for a private organization (the Federalist Society)—and really one person from that organization (Leonard Leo)—having a vital function of government (judicial nominations) so completely outsourced to them. The Washington Post and Sen. Sheldon Whitehouse have done great work in exposing this corrupt arrangement.

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Progressives could not replicate the Federalist Society model if we wanted to—and we don’t and shouldn’t. For us, there is never going to be one organization that dominates the process, period. Both the progressive movement and the Democratic Party are coalitions. Everyone deserves a seat at the table and for their voice to be heard. There are organizations like the American Constitution Society that are focused on judicial nominations issues, but then you also have civil rights organizations, the bar associations for people of color, labor, plaintiffs’ lawyers, lots of other groups and interests. It’s a broad coalition, and the politics can get tricky, but that doesn’t mean we can’t be organized and effective.

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And I think those of us who are focused on the courts are much more effective now. There is a better and broader understanding now about why nominating great judges who reflect the communities they serve is vitally important. We have a much stronger infrastructure of organizations focused on these issues. All the groups and organizations have our own role, but we’re coordinating closely and all pulling in the same direction. And we have a much stronger connection to the progressive base than has sometimes been the case.

ACS is playing a leading role in assembling a pool of potential judicial nominees for the Biden administration to consider. We are doing this work in the best way, from the bottom up, with hundreds of people having conversations in their communities about who would be a great judge. The 50 working groups we have in 37 states have a clear mission: to include people who have historically been underrepresented in the judicial nominations process. That certainly means people of color and women and LGBTQ people, but we’re also focused on underrepresented practice areas, such as civil rights and criminal defense lawyers and people who have advocated for victims of employment discrimination or corporate wrongdoing. One thing I keep hearing is that we need more judges who have experience representing people with problems, not just the government or other powerful institutions, and we’re addressing that.

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When we spoke for the Amicus podcast last year, it was clear you were prioritizing the judiciary and answering the McConnell juggernaut. I find myself wondering whether the willingness to go beyond old Senate norms and conventions was a function of seeing what the judiciary was capable of destroying with a stroke of a pen? Did that radicalize you? Is there a lesson on why judges matter that you came to understand before many progressives did?

The reality is that in a free society, there has to be a commitment to democracy that transcends winning on policy issues. I think the big difference is that a lot of people on the right have made clear they don’t share that commitment to democracy. It is thus apparent to me, and to many others, that we need sweeping reforms to save our democracy.

First, as to the Senate, there is the grotesque malapportionment we now have. There also is the weaponization of the legislative filibuster so that most things need 60 votes, and 51 votes gets you nothing. That practice does not date back to the Founders. Senate Minority Leader Mitch McConnell has grossly abused the right to filibuster. That same drive for minority rule also exists with respect to the House of Representatives, where you have extremely aggressive gerrymandering.

Then, with the presidency, there is the Electoral College. Twice in this century the candidate who got the most votes did not become president. And throughout the entire political system there is widespread voter suppression. In the Georgia Senate races, the Republicans suffered a huge defeat, costing them control of the Senate. Their reaction was not “How do we appeal to more voters on the issues?” or “How do we recruit better candidates?” but rather “How do we make it harder for people to vote?”

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But yes, backstopping it all and swatting down much of the progressive action that somehow manages to emerge from this gauntlet of minority rule are the courts, and especially the Supreme Court. We have got to face facts: The courts have already been packed, by Republicans. First there was a near total blockade by Republicans on confirming President Obama’s nominees after 2014. Then there was the frantic push to confirm large numbers of unqualified extremists under President Trump, culminating in the absurd spectacle of the last-minute installation of Justice Amy Coney Barrett after millions of people had already voted to end the Trump presidency. And of course, there was theft of the seat for which President Obama nominated Merrick Garland.

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And most importantly, the current 6–3 right-wing Supreme Court majority, on top of all the undemocratic actions it takes by striking down progressive legislation and actions on ideological rather than legal grounds, is also the last line of defense, for maintaining all the other anti-democratic elements in the rest of the system.

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I think some on the right have a fantasy that this can persist forever, that the American people are just going to submit to minority rule. But the court has never been able to impose that kind of a radical agenda in a sustained manner, and it isn’t going to now. Conservative think tank intellectuals have constructed a grand castle of legal theory, but politically it sits on sand.

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Last year when you took this position, you told the New York Times, “Somehow this message has to get through, that usually the final word is in the courts,” and I wonder if most Democrats have internalized that message, perhaps after the death of Ruth Bader Ginsburg, or if it seems less urgent after Dems won the White House and control of both houses. Is there any public appetite for meaningful court reform, or has the sense become that the judiciary is, once again, back-burnered?

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I think that politics is mostly the slow boring of hard boards, and it often takes a long time to break through. But then once you do, everything is different, and the impossible is suddenly possible. And that’s where we are, finally, on getting progressives to understand the importance of the courts and of who becomes a judge.

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Of course, people who care about any issue can never rest on their success, and it is essential that we keep pushing and giving people fresh examples of the stakes. But if we take care of the basics, and we will, I am not worried about backsliding. And I have little doubt that the court’s right-wing supermajority will keep us equipped with fresh examples of its key role in blocking progress of all kinds. Just this week Politico ran a postelection piece that found in 10 key battleground states, the Supreme Court was an issue that motivated Biden voters more than Trump voters.

Now that the court reform task force is being constituted, does ACS have any formal views on what kinds of structural court reform is appropriate to answer Mitch McConnell’s judicial earthquake of the past four years? What do you tell your former colleagues in the Senate about whether to go big or go small on reform, and what does that look like?

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It is the view of most ACS members that the courts, and especially the Supreme Court, are in urgent need of reform. I think there is very strong support for that goal—not unanimity, but consensus. As you move from ends to means, there is more diversity of views. Some people, and especially law students and more junior lawyers, are strongly in favor of adding additional seats immediately. Others might be interested in certain proposals—such as term limits or limiting the court’s jurisdiction in certain areas—and are also open to being persuaded on expanding the court, but are not there yet. And there are a large number of more complicated plans that would try to bring balance to the court. I saw one survey that included more than a dozen different plans.

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Right now for ACS, the focus is on highlighting the urgent need for reform and helping to spread that message to opinion leaders, progressive activists, and the broader public. And we are facilitating a conversation about which reform or reforms will be most effective. Given the urgent need for reform, I understand the desire to move forward quickly, but I think we have more work to do in achieving broader support for a specific course of action.

There also is a broad recognition that the lower courts need more judges, both to balance the packing by Republicans and because some parts of the country just do not have enough judges to give people their day in court in a reasonably timely way. But again, ultimately, you have to address the Supreme Court.

As for the Senate, I know people are dealing with a lot, but they really do need to keep their eye on this ball. Medicaid expansion under Obamacare is probably the most relevant example. People worked so hard to craft that legislation and get it passed, and then—poof. A big part of it was gone after a few keystrokes at the court. There certainly is going to be a major push on democracy reform and a real effort to get at some of the anti-democratic pathologies that I mentioned earlier. But there’s not much point in passing a great piece of legislation if the court’s right-wing supermajority can just swat it away. Given that Section 2 of the 15th Amendment explicitly gives Congress the power to make laws protecting the right to vote, should the court even have jurisdiction over those matters? It’s something to think about.

I would just urge people to make sure that whatever they do is really adequate to reform the court. There is going to be a huge battle either way, so there is nothing to gain from half measures.

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