Is it too soon to start a conversation about 2020? Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench. The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend. For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction. As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.
We start our conversation by looking at the governors in contention for the 2020 Democratic nomination.
Perhaps no one has a more analogous record that can be applied to a President’s than a state governor’s. In most states, governors make appointments to the state bench. As such, a governor has tremendous influence over the direction of the state judiciary, should they choose to exercise it. As such, let us look at the presidential contenders with gubernatorial experience and look at their record on judges. (As always, the opinions are my own and can be disagreed with by reasonable people)
Bullock is the Governor of Montana, where he has served since 2013, and before which, he served as Attorney General of Montana from 2009 to 2013. In Montana, Governors can fill interim judicial vacancies until the next general election. Governors must select their picks from a list sent by a nominating commission, and the picks must be confirmed by the Montana State Senate. Throughout Bullock’s tenure as Governor, the State Senate was controlled by the Republican Party.
In his tenure, Bullock has appointed two justices to the Montana Supreme Court, both of whom have been confirmed by wide bipartisan margins. In 2014, Bullock appointed Jim Shea, then a workers’ compensation judge, to fill a vacancy opened by Justice Brian Morris’ elevation to the federal bench. Shea was confirmed by a 41-9 vote by the Montana State Senate and won election to a full-term in 2016 unopposed. In 2018, Bullock appointed district judge Ingrid Gustafson to replace Justice Mike Wheat. Gustafson, who was considered for the federal bench in 2013, was confirmed and re-elected unopposed. Both Shea and Gustafson are considered relatively mainstream judges. Both justices were in the majority of a 5-2 decision that struck down a Montana program that permitted school vouchers to go to religious schools. In 2017, Shea wrote a 4-3 opinion rejecting an argument that a sentence of 110 years in prison without the possibility of parole for a crime committed shortly before turning 18 was unconstitutional (Gustafson was not on the court at the time). From this, one could extrapolate that Bullock would continue to appoint moderate liberals to the federal bench, rather than selecting bomb-throwers or liberal lions.
Andrew Cuomo currently serves as the Governor of New York, where he has led the state since 2011. As Governor, Cuomo has had a huge impact on the judiciary, particularly on the New York Court of Appeals (despite its name, the highest court in the state). Cuomo has named the seven judges currently serving on the court, as well as Judge Sheila Abdus-Salam, who served on the court until her untimely death in 2017. Cuomo’s selections have been fairly diverse, with four of the eight being women, and four being judges of color. Cuomo also appointed the first openly LGBTQ judge on the court, Judge Paul Feinman. In fact, only one of Cuomo’s eight appointments has been a straight white male: Judge Eugene Fahey.
However, on the political front, Cuomo has undoubtedly been cautious. Despite representing one of the most liberal states in the country, Cuomo has largely chosen moderate judges with relatively noncontroversial records, including selecting one Republican, Judge Michael Garcia. On the flip side, Cuomo declined to reappoint Judge Victoria Graffeo, a Republican appointed by Gov. George Pataki, despite the Judge’s relatively mainstream jurisprudence and bipartisan support. Furthermore, Cuomo’s appointees are relatively old, especially given New York’s mandatory judicial retirement at the age of 70. The average age of a Cuomo appointee has been 57 at the time of appointment (compared to approximately 50 among Trump appointees). Based on these appointments, look for a President Cuomo to prize diversity and experience over appointing young liberals.
John Hickenlooper served as Governor of Colorado from 2011 to 2019. The Colorado Governorship is particularly powerful when it comes to judicial appointments, as such appointments do not need to be confirmed by a legislative body (although recommendations do come from a judicial nominating commission).
As far as his appointments go, Hickenlooper’s record is mixed at best. Hickenlooper has tapped five justices to the Colorado Supreme Court, having had an outsized impact on the court. However, those appointments have not cemented a progressive majority on the court, largely because Hickenlooper has forfeited opportunities and named conservative candidates. In his very first appointment to the Colorado Supreme Court, Hickenlooper appointed a Republican, Brian Boatwright, sidestepping two more liberal candidates, to replace the left-leaning Justice Alex Martinez. Similarly, Hickenlooper’s last appointment to the court replaced the center-left Chief Justice Nancy Rice with Justice Carlos Samour, again choosing a former registered Republican over two more liberal candidates. Interestingly, in making the selection, Hickenlooper felt the need to address criticism that Samour was “too conservative,” noting:
“[Samour is] a judge committed 100 percent to fairness and fidelity of the law.”
On the flip side, Hickenlooper had the opportunity to replace the strongly conservative Justice Allison Eid (tapped by Trump to the federal bench), and chose law professor Melissa Hart, considered the youngest and most liberal of the three candidates presented to him. Nevertheless, looking at his record overall, Hickenlooper seems unmotivated by the ideology of his appointments.
Jay Inslee currently serves as Governor of Washington state, where he has led an ambitiously liberal agenda. As Governor, Inslee can fill judicial vacancies that open midterm, and Inslee has filled one vacancy on the Washington Supreme Court, as well as 12 on the Courts of Appeal. Inslee’s sole appointee to the Washington Supreme Court, Justice Mary Yu, was the first LGBTQ-American, the first Latina, and the first Asian American on the Washington Supreme Court. Yu had also achieved the distinction of being the first judge to preside over same-sex marriage ceremonies in Washington state. Yu has been a firmly liberal voice on the court, joining opinions striking down the death penalty, holding the state liable for the welfare of children in foster care, and finding that juveniles cannot be sentenced to life in prison without parole. As such, Inslee, more than any other governor, can claim to have pushed his state bench in a progressive direction.
Former DNC Chair Terry McAuliffe served as Governor of Virginia from 2013 to 2017. Unlike in most states, Virginia gives the state legislature the power to appoint judges, with governors having the power only to fill interim vacancies. Nevertheless, McAuliffe’s tenure coincided with a brutal fight with legislative Republicans over one such interim appointment.
In 2015, Justice Leroy Millette announced that he would move to senior status, opening up his seat. After consulting with Delegate Dave Albo, a Northern Virginia Republican, McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court as an interim candidate. However, Republican leaders in the Assembly argued that they were cut out of the nomination process, and refused to process Roush at all, instead choosing their own candidate, Court of Appeals Judge Rossie Alston. For his part, McAuliffe cited Albo’s endorsement of Roush and argued that Republican leaders were rejecting a qualified candidate. After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston. With neither candidate elected after the interim appointment expired, McAuliffe renominated Roush to another interim term. Meanwhile, Watkins retired and was replaced by Sen. Glen Sturtevant, a fellow Republican. However, Republican plans to confirm Alston were again stymied by Sturtevant’s opposition and the reneging of support by two African American Democrats. Meanwhile, McAuliffe rejected a compromise in which Roush would be appointed to the Virginia Court of Appeals to replace Alston.
Ultimately, realizing that Alston lacked majority support in the Senate, Republicans replaced him with Court of Appeals Judge Steven McCullough, who was easily confirmed. The entire saga is hardly a display of McAuliffe’s mastery of judicial politics. Given McAuliffe’s ultimate defeat in the fight, progressives may wonder if he can be trusted to maneuver judicial nominations from the White House.