Republicans Court Voters, Democrats Silent on the Courts

Last Thursday, Barack Obama and Mike Huckabee shook things up with major victories in the Iowa primary. As the candidates take their fight to New Hampshire, Americans are beginning to get a good sense of where the leading candidates stand on important issues. We have heard plenty so far in this, the longest presidential election in history, about the war, economy, health care, immigration, and religion. And we've heard a lot by the leading Republican contenders about the courts and judicial nominations.

But one would have to review hours and hours of speeches to dig up even a small reference to the courts by the three leading Democrats. Obama, Clinton and Edwards are all lawyers, but none of their campaign websites list the courts as a major issue. Even Stephen Colbert was more vocal about his vision for the courts.

Why are the Dems silent on what may be the most important set of issues of our time, while the Republicans can't go five minutes without talking about judges and the courts? Are the Dems afraid? Is it tactical? Or do they just not get it?

The Courts' Rightward Shift

You'd think the Dems would understand the importance of the judiciary in shaping our democracy. Whether it has to do with a woman's right to choose, the safety of the air we breathe and the water we drink, or whether our schools can work to overcome huge educational inequalities in classrooms that are now more segregated than any time since the 1970s, the courts are crucial. And the right has been, quite frankly, kicking our asses when it comes to the courts.

According to the L.A. Times, after nearly seven years in the White House, President Bush appointed nearly 300 judges to the federal benches, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts.

This change in who is on the court translates into a major shift in what's happening on the courts. Bradford Berenson, who worked in the White House counsel's office in Bush's first term said, "From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees." The leading Republican candidates promise they too, will fight hard for nominees.

The Republican Candidates

Mike Huckabee

Huckabee has echoed the standard right-wing talking points on the need for "strict constructionist" judges. ("Strict constructionist," of course, is usually code for anti-choice, anti-civil rights, pro-big corporation, anti-immigrant, and anti-environment.) According to People for the American Way, Huckabee has pledged to support every item on the ultraconservative wish list -- a far-right Supreme Court, a constitutional ban on abortion, a veto of legislation to protect gay and lesbian Americans from discrimination, support for a bill to keep federal courts from intervening when local officials abuse the power of their office to promote their religious beliefs -- and more.

And Huckabee isn't afraid to talk about it. When asked about what kind of justices he would appoint to the Supreme Court-something the next president may get to do three or more times -- Huckabee's answer was: "My own personal hero on the court is Scalia, not least because I duck-hunted with him."

Mitt Romney

Huckabee's chief rival is in lockstep. Mitt Romney has an entire page on his website devoted to "Preventing Judicial Activism," which is right-wing code for "judicial activism." Romney's site offers a series of quotes expressing his desire for judges that "won't legislate from the bench," which is also code, for "legislate from the bench." The page then continues to detail the right-wing view of the Democratic agenda, with a cutting-edge, new 21st century frame: "liberal, judicial activism."

We've already talked about Giuliani getting into bed with the Federalist Society and promising 200 Scalia-like appointments, so we won't repeat that here. Though we should point out that at least New Yorkers wouldn't have to foot the bill alone this time.

While progressives may not agree with these candidates' view of the judiciary, we certainly admire their understanding of the issues and their ability to effect change. We also should respect that they aren't afraid to talk about these critical issues. Too bad we can't say the same thing about the Dems.

The Democratic Candidates

Hillary Clinton

Review of Clinton's stump speeches yields very little about her views on nominations. We know that she is a smart lawyer and that she served on the board of the Legal Services Corporation. We also know that her first case involved successfully defending a corporation that had left the rear end of a rat in a can of pork and beans. We do not know what she thought of the first judge that she faced.

Most of the information about Clinton's view comes from her failed opposition to certain judicial nominations. In 2005, during the intense debate over the filibustering of some of Bush's nominations and the "nuclear option" (pronounced nu-cu-lar), Clinton kept a low profile, though she did vote to end debate on the nominations, thereby allowing the nominations to come to a vote. She subsequently voted against three nominees, but all were confirmed. She, like her two rivals, came out strong against last term's decision regarding a woman's right to choose.

John Edwards

Edwards' success as a trial lawyer representing injured people is well documented. Though, like Clinton, his platform doesn't include judicial nominations. Aside from his spectacular speech at the American Constitution Society in 2005, he has not addressed nominations and the rollback of civil rights in depth. And like Clinton, he too was opposed to the nomination of John Roberts and Samuel Alito.

Barack Obama

Obama is the only candidate of the three leading Democrats that has a platform plank for civil rights. Nevertheless, Obama's approach to civil rights has more to do with improved government enforcement of existing civil rights laws and legislative fixes than the courts. Though noteworthy, Obama's plank does not seem to include nominations, which could make any legislative fixes short-term wins that could be up-ended by right-wing judges.

Ask Them!

Maybe the reason the Dems aren't talking about the courts is because no one is asking them. Maybe they think we just don't care. Well, we can change that: let's ask them.

Progressives need to start asking tough questions about where all the candidates stand when it comes to the future of the courts. It's particularly amazing how quiet and meek progressive lawyers seem to be acting in the run-up to November. There is no way lawyers in Pakistan would sit idly by as their Constitution and civil rights are eviscerated.

Complaining about a nominee that has already passed the confirmation process is simply not enough. These candidates need to set forth a vision for what the courts will look like, and whether they will once again serve their intended purpose: to protect and preserve equal justice, fairness, and opportunity for all people in the United States. Luckily for progressives, the Alliance for Justice Action Campaign just launched a new site to help you know where the candidates stand, and how to reach out to them with your questions.

The National Campaign to Restore Civil Rights will follow up with another piece discussing the differences between how the progressive and right-wing legal communities promote agendas for legal reform during elections.

Comments

[Qbear]

A great and radical Supreme Court Justice who would p*ss off Roberts, Scalito, Scallia, Thomas more than pubic hairs on their coke cans...Bar­ney Franks

[Rescisco]

An important post. I always marvel at how little we really understand or care about the "judicial power" in our system of checks and balances. We are supposed to have three separate and EQUAL branches of government. The power of judicial review is firmly established in Article III, in case precedent, and as a matter of historical fact we have had judicial activism and activist judges since Marbury v. Madison. I refuse to acknowledge anyone as a serious presidential candidate who does not understand the constitutional basis of the judicial power and who seeks to render the judicial branch toothless. In addition to checking the excesses of the legislative or the executive, judicial "policy making" is a legitimate function where a litigant has legal standing and there is a judicial remedy. The whole appellate process is based on the recognition that error must be corrected and excesses checked. This includes the necessity of constitutional interpretation and reinterpretation to clarify and perfect the implementation and protection of our basic liberties. But all of this is beside the point. The Republicans have already gutted the judicial branch with their ideological appointments. Hence, it is the Democrats who should be making an issue of restoring the judicial branch and the Constitution. Guess the Constitution is bad politics.

[lwaxanatroi]

O-kay. Dragn1 has posted a screed that ought to have all of us on the Dem side sitting up and taking notice. This is precisely the mindset the right has carefully and consistently inculcated in its consituents: the idea that following the constituti­on=support­ing all "conservative" laws are fine; any "liberal" laws are unconstitutional. And make no mistake about the two sources of this mindset: one is abortion, as Dragn1 mentioned. I personally don't think the right would be any happier about abortion if it had been legalized by voters instead of by the Supremes, but Roe v. Wade did lead many citizens to feel that the court took an issue away from them that could and should have been decided at the ballot box. The second issue, the one not talked about as much, was civil rights. Back in the day, federal courts did overrule local laws and did act as "super school boards" for one reason: states and their voters really, really didn't want to integrate. And it wasn't just Southern states, either. The right resented it then and resents it still. And I'm afraid the left still has a residual feeling that the courts are our friend, in spite of many years and many "conservative" appointments to the contrary. Alex is right: wake up and stand up, my fellow Democrats. Educate the voters in what the constitution is truly about.

[lynnn]

Obama's ex con law prof spoke to us, and of course we asked about the Sup question. He said unlike most, Obama knows a lot of judges personaly, and that in the past the Sups also came from academia (where Obama has spent some time in) and that he would not be above apointing someone from academia instead of from the court (btw a lot of judges come from academia). I think thought all the websites need to be more specific.

[dragn1]

How would you like the Dems to comment? We will appoint judges that make stuff up out of thin air. Don’t worry we have never read the constitution and we never will. Your disdain for the word strict constructionist shows the liberal bent that you want from your judges. You do not want judges that read the document and walk the path they have said in their oath they will. You want them to pursue grandiose ideas of society. Since you know that many of the left wing arguments you could not get through the legislative process you want a judge to impose. Abortion would go back to the states and be perfectly legal on a state basis. As many scholars say it should be. Even most liberal scholars say the abortion decision was crap. Last term we had a justice look to foreign law to make a decision. Judges are to interpret the American Constitution not make laws or policy when people want it. If a judge goes outside of their boundaries of oath of office they should be immediately impeached.