In Wake Of Trump, Liberals Start To Realize They’ve Had The Judiciary All Wrong (Above the Law)

In Wake Of Trump, Liberals Start To Realize They’ve Had The Judiciary All Wrong

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Last year, dueling panels at Netroots Nation, the annual gathering of progressive activists, mulled the role of the federal courts in the progressive mission. One panel argued that the liberal fixation on protecting the courts contributed to a general apathy in off-cycle elections — if federal judges can protect everything, what’s the point of any other election? The other issued an urgent call to remember that the fate of the Supreme Court hangs in the balance and Justice Kennedy is playing coy with the fate of civil rights in America.

One year later, after an emotionally deflating electoral collapse, Nan Aron of the Alliance for Justice began another edition of her annual courts panel at the conference. The Trump era has brought the outline of a dialectical synthesis to these competing visions of the role of the judiciary. A realization that maybe they’ve fundamentally had this judiciary thing wrong all along.

The panel, featuring Professor Kimberlé Crenshaw of Columbia, UCLA, and the African American Policy Forum, Anisha Singh of the Why Courts Matter project at the Center for American Progress, and Sean Carlson from Revolution Messaging didn’t say as much, of course, but the deeper they got into the discussion with Aron, two big themes stood out that challenged the way left-leaning people have talked about courts for years and, in the process, bridged the gap of those competing visions from last year.

First, the judiciary cannot be a progressive issue in and of itself — all other progressive issues must be framed through the courts. Rather than say “courts are important,” activists need to seize on issues that are already stirring people, and then connect those issues to the courts. Singh specifically pointed to the health care fight as proof that there’s an enthusiasm to fight for issues that people feel impact them directly. The problem is harnessing that same passion when the threat to health care (or any other issue of importance) is indirect, like in a judicial confirmation fight. Carlson agreed, explaining that progressives have a tremendous problem when they cannot make a connection between the courts and the issues the public cares about.

This bridges the gap that divided the panels last year, upholding the idea that the fight to control the judiciary holds critical importance without lionizing it as a vanguard against all threats. Instead it’s one building block in a larger struggle.

Second, Professor Crenshaw pointed out the elephant in the room: the Federalist Society set out years ago to create a platoon of ideologues to populate the judiciary that would be capable of passing any neutral test of “qualifications.” As Democrats strive to appear “bi-partisan,” these qualifications are used as a cudgel to peel off Democrats to support nominations because, after all, they’re “qualified.” She described the Clarence Thomas nomination and the reluctance of civil rights organizations — before the Anita Hill testimony, of course — to oppose Thomas out of the gate. That failure to get ahead of the narrative allowed right-wing activists to sell Thomas before his actual vetting. The fact that Democrats are starting to recognize that résumés cannot salvage people deeply unsuited for the bench is a testament to nominees like Judge John Bush of the Sixth Circuit and Damien Schiff — and if you haven’t watched their hearings, you really should treat yourself.

This failure to embrace a coherent progressive judicial ideology was indirectly highlighted when Aron reminded the audience that Trump campaigned on a list of judges he’d consider putting on the Supreme Court. But the real point is that this list existed before Trump’s candidacy. The Heritage Foundation had its cast list of ideological purity drawn up already. Progressives have no companion list that the movement can fervently rally around.

Professor Crenshaw explained this Democratic discomfort with ideology carries over to their nominations. Republican nominees have cult-like adherence to their intellectually facile doctrines of textualism and (situational) originalism, while there is no such thing as a coherent left-leaning judicial ideology.

Crenshaw argued that until the left gains comfort with the courts as an ideological question — until they create a new language for judicial expertise that can’t be hacked by just throwing a Harvard diploma on it — the left is “playing gentleman’s tennis while [conservatives are] dropping bombs.”

Aron left the crowd with the prediction that a Kennedy vacancy would spark the biggest mobilization of progressives in the judicial arena. This year, it seems that if that retirement were to happen, progressives know how to harness that mobilization.

Earlier: The Liberal Argument Against The Supreme Court


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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August 11, 2017 at 12:22PM