THE BLOG
08/11/2014 05:09 pm ET | Updated Oct 11, 2014

Liberals Can Wear Robes: What A Recent Confirmation Tells Us

AP

One of the prevailing narratives in American politics for some time has been that liberal judges are politically toxic. The landmark decisions issued by the Supreme Court during the Warren and early Burger Courts--from Brown v. Board of Education to Roe v. Wade--generated political heat that scared supporters of these decisions. When selecting Justices to the Supreme Court or judges to the lower federal courts, many Democrats thought that liberal nominees would be impossible to confirm, even when there was both a Democratic President and a Democratic Senate. Changing the filibuster rules eighteen months ago mitigated this sentiment somewhat, but the fear of liberal judges on the left has been widely and deeply held for long enough that it influenced judicial nominations long before the filibuster mattered and has persisted long after it was eliminated.

The events of last month could go a long way towards removing that fear, and making the possibility of liberal judges a reality rather than just a dream. The Senate of the United States confirmed Pamela Harris to a position on the United States Court of Appeals for the Fourth Circuit. Her reputation as sympathetic to liberal constitutional jurisprudence--and how that manifested itself during her successful confirmation process--illustrated deeper political dynamics suggesting that liberal judges can be confirmed to the federal bench.

Not only has Harris been widely known as one of the most talented constitutional lawyers of her generation, but as one with a progressive view of the Constitution, as I noted for The New Republic when she was nominated. She has been active on the constitutional left, serving on the Board of Directors of progressive organizations such as the American Constitution Society for Law and Public Policy (ACS) and the Constitutional Accountability Center (CAC). In a statement five years earlier that the Senate Judiciary Committee asked about during her confirmation process, Harris said "the Constitution is a profoundly progressive document."

These features of her background were no secret, and were the reasons why her nomination received much attention on the left and on the right. Liberal groups that supported her nomination sent emails to supporters urging them to write their Senators to support Harris. The conservative magazine The National Review's blog on the federal courts, Bench Memos, devoted many blog posts to their opposition to the "arch-liberal" Harris. At her Senate Judiciary Committee hearing, Republican Senators that care the most about judicial nominations (like Ted Cruz and Charles Grassley) showed up to voice their opposition to Harris.

During her hearings, Harris did as judicial nominees need to do and made clear that she thought it "inappropriate for any judge or Justice to base his or her decisions on their own personal views." She still voiced a constitutional theory similar to the one she had before, stating that the Constitution should "evolve" by applying old principles to "new facts or circumstances." Moreover, given her widely known background, there was not much that Harris could do to change the conventional wisdom regarding how she would behave as a federal judge.

These elements of Harris's nomination made it a test case for liberal nominees--and, given her successful confirmation, it illuminates a successful strategic path forward for other nominees when Democrats control the White House and the Senate. Liberal nominees mobilize the base to generate the requisite majority, and do not lose Republican Senators who are incapable of being persuaded anyway.

While the conservative base always cares about judicial nominees, the liberal base needs to be motivated to do so, and can be motivated by promising nominees. Liberal organizations that work on nominations generated reports supporting Harris because of her notable background. Other liberal organizations like civil rights groups and labor unions paused their other policy efforts during the summer to focus mostly on Harris, and to contact their Senators on Harris's behalf. These efforts were part of the reason why the full Senate voted on Harris's nomination incredibly quickly.

Liberal nominees, as the Harris nomination demonstrated, can also count on strong support from Democratic Senators. We live in an era when the Senate is as polarized as it has been in a very long time, and by some measures, more than it has ever been. This means that almost all Democratic Senators vote together on almost all judicial nominees almost all of the time.

If there are Democratic Senators who are thinking of opposing a nominee, the energized liberal base can make a difference. Substantial empirical evidence indicates that a Democratic Senator from a Republican state can be persuaded to vote for a presidential nominee if organizations like labor unions in their state are working to confirm that nominee. This is even truer when the efforts of these organizations are combined together with the White House using its influence in the Senate.

The willingness of Red State Democrats to vote for nominees like Harris is not a fluke, but a reality determined by durable political dynamics. The constitutional jurisprudence that Harris and other similar nominees support is very popular with the public, and so Senators would not generate any backlash at home if anyone noticed their votes in the first place. But rarely does anyone notice, because judicial nominations are low-salience issues that do not influence how voters behave in Senate elections.

Even when Democratic Senators oppose a nominee like Harris, they often work with the White House and their Democratic colleagues in the Senate to frame their opposition in a more constructive fashion. When the Senate voted to invoke cloture and proceed to a vote on Harris, 53 of the 55 Democratic Senators voted to give Harris a vote, even though only 50 of those 55 eventually voted for her. This meant that Democratic Senators who voted against her nomination still voted to give her a full vote that they knew would mean she would be confirmed. Of the 5 Democrats who did not vote for her, only 2 actually voted against her. The other 3 simply were not present for the vote.

Not just do liberal nominees generate positive dynamics among Democratic Senators, there is no cost to nominating them because it generates the same reaction among Republican Senators that any Democratic nominee generates: complete and total opposition. Republicans have opposed moderate nominees put forward by the White House--even those with support from Republican Senators--just as much as they oppose a nominee like Harris. Republicans have opposed other nominees with stellar credentials like Harris, and did so again (all Republican Senators voted against her confirmation).

Many important issues will be decided by the lower federal courts in the years to come. Indeed, in a telling coincidence, the very same day that Harris was confirmed to the Fourth Circuit, a panel on that court decided in favor of gay marriage. If Democrats keep a majority in the Senate, there is little to fear in nominating judges like Harris to the federal courts to decide cases like this many years after Barack Obama leaves office.

David Fontana is Associate Professor of Law at George Washington University School of Law