What modern Democrats crave instead are legislative victories—health care, immigration reform, social support systems, and environmental protections. And that leaves little left over in the political capital checking account to spend on judges. Democrats, of course, aren’t going to kick a liberal court out of bed for eating crackers, but they don’t want to push for one at the expense of other matters. In the first two years of the Obama Administration alone, the President and Congress could have appointed a slew of new federal judges, but they chose to work on other things. These other things, while important, came at the expense of judges.
And that is what brings us to where we are today.
While Democrats have been mesmerized by the shiny lights of Congress, much has changed. The “status quo” simply isn’t the status quo anymore. Many of the left’s most treasured rights have been quietly yet greatly eroded, and those that remain are far more precarious than many realize. The constitutional right promised in Roe v. Wade has been whittled away to a mere illusion for many women and to nothing at all in some states. The beloved Brown v. Board of Education ruling has been significantly narrowed to mean school districts can be legally prohibited from ensuring racially integrated classrooms. Affirmative action has all but disappeared except in very narrow circumstances.
Numerous other changes—changes that might sound academic but have significant real-world implications—have slipped by unnoticed. The Rehnquist and Roberts Courts have placed severe limitations on whether plaintiffs like environmental groups, wronged employees, or victims of police brutality can bring their case to court at all. They’ve further strengthened states’ abilities to escape federal legislation such as the Americans with Disability Act. Their interpretation of both the Commerce Clause and Section 5 of the 14th Amendment, meanwhile, has curtailed Congress’ powers to pass legislation at all. These legal details are not sexy, but they matter to a Progressive view of the Constitution. They matter a lot.
Progressives’ misplaced love affair with legislative change has led to many so-called “victories” that were incredibly hard-won yet ephemeral. What good was it to pass health care legislation if the court is going to knock it down? Why bother with environmental protections if the court is going to declare the EPA lacks the power to enforce them? A law protecting abused women helps no one when the Court says Congress didn’t have the power to pass it. A basic truism is at work here—election cycles may come and go, but federal judges have life tenure.
It’s too much to say, of course, that Democrats don’t care at all about the courts. They can still get themselves sufficiently riled up whenever there’s a vacancy at the Supreme Court. But Republicans also understand that the true battleground is on the lower courts, where one-third of the current judges were seated by George W. Bush. The district courts and, especially, the appellate courts are where future justices are groomed. It is before these courts that the factual record is carefully built and key arguments are framed. Most importantly, the lower courts matter because the Supreme Court hears fewer than a hundred cases a year. For the thousands of others litigants, the road to justice dead-ends at the federal courts of appeal.
Democrats have taken their eye off the ball on judicial appointments for far too long. It took decades for Republicans to build the court system now in place, and it may take many years to rebalance it. But the time to start is yesterday. Until Democrats start slapping “It’s the courts, stupid!” stickers on their rear bumpers, their elected officials aren’t going to change. Until progressives say, “I’m not going to stop writing my senator until Paul Watford gets a hearing,” Obama judges will be slow-walked through hearings and wait months for a floor vote that might never come. We all love the Constitution—it’s an easy document to love. Perhaps the best way to show that affection is to pay long overdue attention to the people given the vital job of safeguarding it.