In February 2016, President Barack Obama nominated D.C. Circuit Court Judge Merrick Garland to the Supreme Court. Senate Republicans immediately informed Obama and the nation they would not consider any nominee put forward by Obama. Senate Majority Leader Mitch McConnell stated the American people should have a “voice” in the court’s direction: "It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.”
The 11 members of the Senate Judiciary Committee, including then-Chair Chuck Grassley, followed up McConnell’s statement with a letter stating they would not consider any Obama nominee. The efforts worked, and the vacancy remained open for President Donald Trump. At the 2016 Democratic National Convention, Garland’s name was not mentioned, as if taboo.
If Democrats want to have any ability to protect those issues important to them, they must start focusing on the essential role federal judges play in our form of government.
The Democrats continue to ignore the significance of federal courts in this election cycle, a major mistake, especially with the latest news of Justice Ruth Bader Ginsburg’s additional bout with cancer. At the debates to date, candidates have scarcely even mentioned the federal courts, just referencing one 1973 decision on school segregation in the Sept. 12 matchup.
Several Democratic nominee hopefuls have suggested changes they might make to the Supreme Court, including raising the number of justices from nine to 15. The nominees should be asked about these plans, as well as how they would address the likely blockade by Republican senators if a Democrat wins the presidency but the Senate remains led by McConnell.
For decades, Republicans have played the long game when it comes to judicial nominees. When in the minority, they have used Senate tools available to them to thwart Democratic presidents. Republicans used blue slips (the traditional Senate practice of not advancing nominees without the approval of both home-state senators) and the filibuster.
They also changed or made up rules to deny a president his power to nominate, and with the “advice and consent” of the Senate, appoint judges to vacancies. The most visible example of this was the position taken by McConnell and Grassley after Associate Justice Antonin Scalia’s death. The claim was that Obama, with just under a year left in his second term, should not be allowed to fill a Supreme Court vacancy. Made out of whole cloth, this “McConnell Rule” has already been disavowed by its creator should a vacancy occur during Trump’s final year.
Republican attention to the courts has paid off handsomely in the first years of the Trump administration. As of Aug. 16, Trump has 146 Article III judges confirmed, or 16.7% of all Article III judge positions. Trump also has filled 43 Courts of Appeals judge positions, or 24%, and nominated two of nine Supreme Court justices. The appellate judge nominations set a record pace for the first term of a president. Two Supreme Court justices in the first term is also uncommon.
As the Senate comes back from its summer recess shortly, its chief activity will be to confirm more judges, with 40 nominated judges awaiting hearing confirmations. If all are confirmed, that would give Trump at least 200 Article III judges in his first term.
These judges matter. For many litigants, their final decision comes from the Courts of Appeals, which handle far more cases than the Supreme Court’s around 80 cases per year. The Alliance for Justice has identified how Trump judicial nominees have decided on an issue-by-issue basis. Those issues, including immigration, health care, and the environment, are what Democrats assert matter to our nation’s future.
Democratic leaders must address the courts and their visions for balancing the courts. They should review how Republicans have gone about this important business and move forward accordingly. The courts are a central aspect of governing this nation, and the Democrats must demonstrate they are serious.
Long ago, the Republicans figured out the importance of the courts and changing their makeup through any means necessary. It has worked. It is time now for the Democratic presidential hopefuls to provide a vision of their judicial approach and their views on this coequal branch of our government.
Kermit Roosevelt III is a professor of law at the University of Pennsylvania Law School and author of the novels “Allegiance” and “In the Shadow of the Law.” Daniel Cotter is a member of the federal courts committee of the Chicago Council of Lawyers, a progressive bar association.