How Democrats Lost the Courts

Progressives have theoretically been plotting their judicial takeover for a long time. Two decades ago, a law professor named Peter Rubin decided that progressives needed a counterweight to the conservative legal movement, which was growing in influence and power. Since the early 1980s, wealthy right-wing donors had been pouring money into the Federalist Society, which served as a clearinghouse on law-school campuses for every future scholar, judge, and public servant interested in conservative ideas. Over the course of years, the Federalist Society had come to loom over elite legal thought; it set the terms of legal debates, even for groups that disagreed with conservative principles. After the Supreme Court decided the 2000 election in Bush v. Gore, the progressive legal world mobilized against what many liberals saw as a shocking decision—and the conservative movement that made it possible.

The group they formed, the American Constitution Society, attracted some of the biggest figures—and funders—of the liberal legal world. But from the start, ACS was at a disadvantage. Although FedSoc quickly became the default home for conservative law students, progressive law students had plenty of other options for how to spend their time on mostly left-leaning law-school campuses. ACS’s money never caught up to FedSoc’s: Liberal students at ACS events got pizza dinners while conservative students hobnobbed over steaks with the judges who would soon hire them as clerks. And ACS just wasn’t focused on explicitly influencing who was in the mix for big legal jobs, including on the judiciary, in part because many progressives found the idea of an outside group influencing the president’s nomination process distasteful. Judgeship nominations were “definitely not the focus of progressives for some time,” Dawn Smalls, a former ACS board member, told me.

When Obama was elected, a glowing write-up in The New York Times cited Attorney General Eric Holder’s ties to ACS; surely, the reporter implied, this administration would move quickly to counter the conservative judicial takeover that had unfolded under President George W. Bush. Those predictions proved misguided. To be fair, a lot was happening during those early Obama years: The economy was failing, and the president was determined to pass major health-care legislation. Judicial nominations took time to source and vet, and then they took up committee time and floor time in the Senate; in this hectic legislative environment, nominations assumed a back seat. Staffers who served in the White House at the time told me the judicial-nominations process was disorganized, without clear staffing or an urgent mandate. One reason was political: “There was a sense that any time Democrats are talking about judges, they’re losing,” Chris Kang, a special assistant to the president at the time, told me. Judges were a winning talking point for Republicans who wanted to appeal to their pro-life, Christian base. The issue didn’t have as much salience for Democratic voters, who came to the party’s big tent with diverse backgrounds and priorities. Obama’s first chief of staff, Rahm Emanuel, reportedly considered fights over controversial judicial nominees a distraction from the important business of governing.

Besides, Democrats were still operating according to an old mode of politics. Senator Patrick Leahy of Vermont, the Democrat who became the head of the Judiciary Committee, decided to reinstate the so-called blue-slip process—which effectively gives individual senators veto power over judicial nominations from their state—even though Republicans had done away with the tradition when they were in power. For its first circuit-court pick, the Obama administration chose David Hamilton, a centrist judge from Indiana who was a preacher’s son and a widely admired figure in his home state, thinking Republicans wouldn’t be able to find anything objectionable in his record. Instead, Republicans painted Hamilton as a radical, anti-Christian extremist and boycotted his initial hearing. The lesson the administration took away from that experience was not that Republicans were going to oppose anyone Obama nominated; it was that they needed to pick the most moderate, palatable candidates possible if they had any hope of getting nominees through. Meanwhile, Republicans had started filibustering even district-court nominees.