To ‘Build Back Better,’ Democrats Must Match Republicans’ Rhetoric and Actions on the Courts
At their convention, Democrats spoke about their plans for a better country, including on human, civil, and workers’ rights, and on access to healthcare, reproductive justice, gun reform, climate change, and immigration.
But, remarkably, the speakers at the 2020 Democratic National Convention spent little time discussing how their lofty and worthy goals would survive judicial challenges.
Contrast that with the Republican National Convention, where numerous speakers spoke about both the Supreme Court and the lower courts. For instance, RNC Chairwoman Ronna McDaniel said President Trump “appointed constitutional conservatives to the federal bench — over 200 of them.” And, Abby Johnson said Trump “appointed a record number of pro-life judges.” Both Trump and Vice President Pence made the courts an emphasis.
Indeed, it seems if all President Trump and Senate Republicans have done for the past four years is focus on stacking the courts with young — often unqualified — judges with disturbing records, including many eager to overturn the Affordable Care Act. In total, a quarter of all federal judges are now Trump appointees, which makes it incredibly likely they’ll have opportunities to block and overturn whatever Democrats hope to accomplish.
For example, Trump still supports a lawsuit before the Supreme Court to overturn the ACA in its entirety and take healthcare away from 20 million Americans and eliminate protections for 135 million people with preexisting conditions — with no replacement plan in sight. Given Brett Kavanaugh previously drafted what one of his clerks called a “roadmap” for overturning the ACA, it’s astonishing how silent the Democrats were on the courts — especially when this Trump appointee will hear arguments in this case literally a week after the election.
The Republican convention made it clear the GOP is committed to appealing to the right-wing base of the party. In fact, the GOP has almost singularly focused on packing the courts in recent years. Even during the pandemic, the president and Senate Republicans rammed through two judicial nominees with egregious records on healthcare to powerful appeals courts.
One of them, Justin Walker, was the clerk who praised Kavanaugh’s “roadmap” to overturning the ACA. Not only did Walker find it “indefensible” that the Supreme Court upheld the ACA, he even continued to express his opposition to the law as a sitting judge. Despite his clear lack of impartiality, Walker now sits on the D.C. Circuit, the second most powerful court in the country.
The other, Cory Wilson, a former Mississippi lawmaker who now sits on the Fifth Circuit, described the ACA as “perverse” and “illegitimate,” and he opposed expanding Medicaid in Mississippi, which deprived 100,000 Mississippians of critical health coverage.
Between when Walker and Wilson were nominated in the spring and their confirmations in July, nearly 120,000 Americans died of COVID-19. Rather than protecting their constituents from the pandemic and ensuring their financial security, Senate Republicans still prioritized rigging our courts to continue their dirty work even — and especially — if they lose power. These extremist judges will have their say on the bench for decades to come, and Democrats simply cannot ignore this problem.
What better time for Democrats to elevate the discussion of the courts than right now when the public continues to be engaged on the issues?
Quite simply, addressing the courts is paramount, given Joe Biden has made expanding on the successes of the Affordable Care Act and ensuring even more people have access to healthcare is a cornerstone of his platform. As the nation’s litigation experience with the ACA suggests — this lofty goal will only be possible if the courts allow it.
Kavanaugh’s nomination and subsequent confirmation energized liberals and progressives around the courts like never before. Voters recognize that our courts are essential to upholding the laws that protect us and ensure our civil rights. The Democratic Party should fully embrace the courts as a fundamental priority if it truly expects to “build back better.”
The DNC platform does call for expanding the number of judges that make up our lower courts, but that will only be helpful if the party is committed to expediently filling the openings with qualified, fair-minded judges.
Rebuilding our courts needs to be a day-one priority for Biden — and the Building the Bench initiative is already identifying some exemplary candidates. The nation deserves qualified judges who will actually uphold constitutional values.
Nan Aron is the founder and president of the Alliance for Justice Action Campaign and Alliance for Justice, a national association of 120 nonprofits. She holds a BA from Oberlin College and a JD from Case Western Reserve.
