Initial Thoughts on the Demand Justice Shortlist

On May 19, 2016, then candidate Donald Trump unveiled a list of thirteen judges, pledging only to appoint candidates to the Supreme Court from that list.  The intent of the list was to shore up flagging conservative support for the candidate, and it worked.  The list, along with Senate Majority Leader Mitch McConnell’s refusal to fill the vacancy created by Justice Antonin Scalia’s death, meant that the Supreme Court was a key issue in the 2016 Presidential election, and conservative judicial voters carried Trump to a narrow victory.

So far, no Democratic presidential candidate has taken a page from Trump’s playbook and released their own list, but liberal judicial group Demand Justice has taken up that mantle, releasing a list of 32 lawyers, law professors, and judges for appointment to the Supreme Court.  The list has attracted both praise and criticism, including from those who have argued that the list is not even close to a plausible Democratic shortlist.  However, Demand Justice is not running for President.  Where Trump’s list was intended to convince conservatives that he can be trusted to appoint “safe” picks, Demand Justice’s shortlist is seeking something different: to remind progressives that there are alternatives to the traditional appellate hunting grounds for court appointments.  In that sense, the list has been successful.

That being said, let’s break down the names further.

Demographic Diversity

Demographic diversity was obviously important to Demand Justice’s compilers, as the list reflects nominees from across the racial and ethnic spectrum.  The list is majority female and majority POC.  In fact, there is only one cisgender straight white male on the list: Philadelphia D.A. Larry Krasner.  Rather than being a coincidence, this is likely a deliberate effort on Demand Justice’s part to craft a list that is more diverse than the names typically considered.

Geographic Diversity

Let us look at the home states of the last five Democratic nominees to the Supreme Court: Ginsburg (N.Y./D.C.); Breyer (Mass.); Sotomayor (N.Y.); Kagan (Mass./D.C.); Garland (D.C.).  In fact, the last Democratic SCOTUS nominee who was not from New York, D.C., or Massachusetts was Homer Thornberry in 1968, and the last successful appointment not from one of these three states/districts was Arthur Goldberg in 1962 (and even he was serving as a cabinet official in D.C. before his appointment).  Unfortunately, the Demand Justice list is also heavy with nominees from these three states, although you can also add California, which hosts a fair number of shortlisters.  Leaving out these four states, you have Krasner from Pennsylvania; Judge Jane Kelly from Iowa; Judge Carlton Reeves from Mississippi; Judge Richard Boulware from Nevada; and Justice Anita Earls from North Carolina.

Educational Diversity

Much has been made of the Harvard-Yale duopoly on the Supreme Court, and this list is unlikely to change that too much.  Of the 32 names on that list, 19 are alumni of either Harvard or Yale (or in some cases, both).  Of those who are not, only ONE attended a non-top 20 law school (ACLU attorney Brigitte Amiri, who attended Northeastern Law).

Experiential Diversity

Here’s where this list differs the most from Trump’s.  Every single candidate on Trump’s shortlist was a judge (either on state or federal court).  In contrast, the majority of Demand Justice’s list has no judicial experience.  Only two serve on the U.S. Court of Appeals (Judges Jane Kelly and Nina Pillard), while another two serve as U.S. District Court Judges (Judges Richard Boulware and Carlton Reeves).  Four serve on State Supreme Courts (Justices Liu, Cuellar, and Krueger from the California Supreme Court and Justice Earls on the North Carolina Supreme Court).  The remaining twenty four (75%) have no judicial experience.

Rather, the list is heavy with law professors, civil rights lawyers, and even includes three elected officials (one of whom, Rep. Katie Porter, was a former academic).  The list does include a fair number of former clerks.  Nine on the list clerked on the U.S. Supreme Court including:

  • 3 Blackmun clerks (Michelle Alexander; Pam Karlan; Cecillia Wang)
  • 1 Stevens clerk (Leondra Kruger)
  • 1 O’Connor clerk (James Forman)
  • 2 Ginsburg clerks (Goodwin Liu; M. Elizabeth Magill)
  • 1 Breyer clerk (Timothy Wu)
  • 1 Sotomayor clerk (Melissa Murray)

Age and Youth

One factor that Republican Administrations tend to prize in their appointments is youth, generally selecting nominees in their 40s and early 50s, while Democrats tend to choose older judges with more experience.  While there are a handful of younger picks on the list, for the most part, the Demand Justice continues the pattern of older Supreme Court picks.

By mid-2021, which is the earliest that a Democrat can expect to fill a Supreme Court vacancy, seven members on the list would be sixty or above (Becerra; Earls; Karlan; Krasner; Minter; Pillard; Stevenson).  If we go to 2025, seventeen fall into that category.

Overall Analysis

Between the age issue and the judicial experience issue, one can see why some would criticize this list as being unrealistic.  However, as noted above, Demand Justice is not making appointments.  Its goal here is to push the conversation about Democrats towards nominating progressives for the bench, and it has done so here.

Furthermore, not everyone on Trump’s own lists was a plausible Supreme Court choice (did anyone realistically believe that Trump would appoint Michigan Supreme Court Justice Robert Young to the Supreme Court).  Rather, for many, placement on the list was intended to raise their profile before an expected lower federal appointment.  It is for this reason that so many names on the list found their way onto the federal bench.  Similarly, don’t be surprised if a President Warren or Sanders or Biden appoints Dale Ho to the Second Circuit; or Deepak Gupta to the D.C. Circuit; or Katie Porter to the Ninth Circuit.  As such, the greatest impact of this list may well be on the courts of appeals.

 

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