If Republicans hold the Senate for two more years after Tuesday, President Trump could luck into filling another seat or two on the Supreme Court, even as he keeps packing the lower courts with Federalist Society-groomed judges who are corporate-friendly and far to the right on same-sex marriage, LGBTQ issues and religious freedom.
Two numbers should grab every Democrat’s attention: 84 and 20. The larger number is how many federal judges Trump has confirmed for lifetime seats in his first two years, with Republicans controlling the Senate. The much smaller number is how many President Obama confirmed in his first two years, when Democrats had control.
Trump mockingly thanked Obama for leaving so many judgeships unfilled. “Maybe he got complacent,” Trump says.
No, that wasn’t the reason. GOP leader Mitch McConnell used the filibuster to block 82 of Obama’s judicial nominations. To grasp how excessive that is, before Obama, Senate leaders in both parties through all of American history blocked a total of 86 judicial nominations with the filibuster.
That is what drove Democratic leader Harry Reid to end the filibuster on judges except for the Supreme Court. McConnell then scrapped it for SCOTUS in order to seat Trump’s two nominees with far fewer than 60 votes: Neil Gorsuch (54 votes) and Brett Kavanaugh (50 votes).
Evangelical voters who otherwise would not give Trump the time of day flocked to his campaign in 2016 when he pledged to nominate judges who would overturn Roe v Wade, the court’s 1973 ruling that legalized abortion.
Running against Roe and a liberal court is a proven vote-getter for the GOP. Now that the right has locked down a five-seat conservative majority on the nine-member court, will Democrats and liberals continue to cede the political fight?
Democrats historically have been on the side of the courts, and loathe to think them as just another political branch. Think Brown versus Board of Education, Roe v Wade, and the Voting Rights Act. Democrats still love Sandra Day O’Connor for protecting Roe, even after she provided the fifth vote in the purely political standoff that made George W. Bush president.
Republicans are more committed to the nitty-gritty of governing from gerrymandering to, sadly, voter suppression. Obama says Democrats don’t vote in midterms because they’re “not sexy.” In 2014, only one in five millennials voted. This year’s prediction: a third of millennials will vote.
“On the progressive side we are a little bit old-school where you just pick qualified people and it will all work out. Obviously we came to a rude awakening with the Garland fight,” John Podesta, Hillary Clinton’s campaign chairman, told the New York Times in May while praising the creation of a new activist group, Demand Justice. “We have ignored this field of battle for too long,” he said.
Former Hillary Clinton national press secretary, Brian Fallon, the executive director of Demand Justice, told the Daily Beast that “with Kavanaugh on the court, the pendulum is about to swing. The sense of grievance that has gripped the Republicans for the last forty years will probably take hold on our side, sadly,” he said. “I say sadly because I wish it didn’t take some awful decision to shake our complacency.”
Going into the midterms, the NBC-Wall Street Journal poll found that the Senate hearings focusing on Brett Kavanaugh’s alleged sexual misconduct in high school boosted his name recognition to 91 percent, an extraordinary number given that half the likely voters in a recent C-SPAN survey this year could not name a single Supreme Court justice.
Fallon recognizes the challenge on the Democratic side. A poll done by Demand Justice in May 2018 found that progressives by a margin of 50 to 41 had a favorable view of the court headed by Chief Justice John Roberts. “A majority of progressives didn’t think the Court was conservative and that’s nuts,” says Fallon.
These positive views of the court were based on Roberts saving the Affordable Care Act with his vote, and same-sex marriage getting the go ahead in a 5 to 4 decision with Justice Kennedy casting the deciding vote.
With Kennedy gone now, it’s a different dynamic, one that Democrats hope to turn to their political advantage. “We saw the stirring of a progressive revolt,” says Fallon, when protesters banged on the door of the Supreme Court as Kavanaugh was sworn in. Cultivating that sense of alarm and urgency among progressive Democrats is the goal. With the court in the hands of a newly emboldened majority, there should be plenty cause to turn the tables.