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Democrats have lost on the courts. That’s not an opinion; it’s just a fact. Conservative ideology is triumphant across all article three institutions. Conservative voters have been taught to mouth court-sounding issues “mah guns” or “infanticide” to mask the true goals of bigotry and sexism that motivates that base. Outside groups like the Federalist Society or the Judicial Crisis Network pour money into promoting conservative judges and putting up campaign ads. The mainstream media is so cowed by the conservative onslaught that they parrot radical conservative views or unqualified conservative judges as “reasonable” possibilities. Republicans successfully stole an entire Supreme Court seat and managed to install an alleged attempt rapist on the Supreme Court, just as an “F You” to women who dare to wish for equal protection under the law.
If that is not what losing looks like, I don’t know what is.
There are Democrats who do not understand how deeply they’ve lost this battle. There are even Democrats who don’t understand why it’s important to win this battle. And then there are Democrats who think that the way to win going forward is to find acceptable older white men with centrist views who won’t immediately draw the attention of the conservative hive mind that will marshal against them.
The group Demand Justice has released a list of potential Supreme Court nominees. Their list is not for those Democrats. It’s not for Democrats who are scared of Republicans, of bigots, or of their own shadows. It’s not for progressives who are scared of JCN and FedSoc and their assorted overwhelming trolls. It’s a wish list of progressive legal and judicial stars. It’s a list that highlights that the progressive bench is deep and diverse and capable of bringing so much more to the table than whatever aging prosecutor cum jurist the centrist would offer up while begging conservatives not to be too angry. This list is an aspirational goal.
Now, a legitimate question is why we need such a list. People who are already paying attention know who the progressive stars are. People who are not paying attention are, you know, not paying attention and not going to start just because they hear Sherrilyn Ifill’s music in the background. There’s not a lot of evidence that progressive voters are actually moved by the Supreme Court, while there is a ton of evidence that conservatives love to campaign against the judges who will uphold pluralism and equality like the ones on this list. Might it be better for Demand Justice to do the normal progressive thing when it comes to the courts and, you know, hide? Tread lightly? Be mindful of pissing off the Republicans and avoid putting a name and a face on their true intentions?
Obviously, from the way I phrased the above, you can tell where I stand. I believe that Democrats have lost on the courts because they’ve spent the better part of 30 years being afraid of the issues most associated with courts. Americans are broadly against the kind of post-apocalyptic view of gun rights conservatives push with their interpretation of the Second Amendment. Americans are broadly in favor of a woman’s constitutional right to choose. Americans are broadly in favor of campaign finance reform. Americans are broadly in favor of equal protection under the laws, regardless of race, color, creed, or sexual orientation. Americans are broadly in favor of an interpretation of the 15th Amendment that includes people being allowed to vote.
But Democrats, at a leadership level, do not want to fight on these issues. They don’t want to fight for women — they want to triangulate, or do some other made-up strategy that is a synonym for bullshit. They don’t want to nominate aggressive progressives to balance out the arch-conservative takeover of the courts — they want to nominate gaumless centrists. President Barack Obama nominated a well-meaning white man to fill Antonin Scalia’s seat in hopes that Republicans would be shamed into playing ball. REPUBLICANS HAVE NO SHAME. It’d be nice if the Democrats recognized that before we all die.
That’s why philosophically, I like the list Demand Justice has put forward. The Merrick Garlands of the world are not on it. Instead, there are people like Ifill, like Gupta (both Vanita and Deepak, for those playing along at home). There are old standbys like Pam Karlan, new stars like Leondra Kruger, and my personal favorite, Larry Krasner. Folks, Larry Krasner would ignite criminal justice reform at the Constitutional level like nobody’s business, and I don’t even know how you’re a “liberal” if you don’t like that choice.
Is the list progressive? Yep. Can you remember the last time the conservatives got dinged because their list of reactionaries who hold gays and non-Christians in open contempt was “too conservative”? Yeah, me neither. Because the media never complains when the right goes too far right. So excuse me if I like people who can COUNTER Republicans instead of desperately trying to appease them.
I also like the list as a practical matter because, as you might have noticed, the Democrats are currently in debate over their nominee to take on Donald Trump. From 30,000 feet, sure, every single one of the Democrats running for president would nominate better judges than Donald Trump and Mitch McConnell. But at a more granular level, I do not know if every Democrat has the will and the vision to make aggressive Supreme Court choices. In fact, I suspect most of them do not. I expect the fear of Republicans is so ingrained in some of these people’s DNA that even if they get a chance to nominate a justice — assuming Mitch McConnell is defeated and thus the normal operation of judicial appointments is allowed to continue under a Democratic president — I assume most of them will nominate justices designed to placate Republicans instead of fight them.
As a progressive, my primary vote is still gettable and the people who support the kinds of judges on this list are the ones who have a chance at getting it. I’ll “vote blue no matter who” but I’ll be damned if I willingly walk into the “let’s just re-nominate Merrick Garland” camp unless I am dragged kicking and screaming the entire time.
Because I want to win. I reject the notion that the way to do that is be afraid all the damn time. This list, whatever it is, is not one birthed in fear. That’s a nice change when it comes to liberals talking about the Supreme Court.
Demand Justice’s Supreme Court shortlist
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.