Take two candidates for the bench: a forty year old attorney who has spent their career as a legal bombthrower, marching in protests and writing strong-worded blog and twitter posts; and a sixty year old partner at a top law firm who has donated generously to their home state senator but has otherwise undeveloped legal views. It may be a cliche to say that the former is more likely to get nomination under a Republican Administration while the latter is under a Democratic Administration, but it’s a cliche that’s borne out by experience. Just look at what’s happening now in state judiciaries across the country.
So far, in 2020, 18 vacancies have opened up in state supreme courts where the justices are appointed by the state’s governor. Of those 18 vacancies, just six were in states appointed by Republican Governors, while 12 were in states appointed by Democrats. Given this structural advantage in reshaping the state bench, you’d expect Democratic Administrations to work closely with progressive groups in picking young, liberal jurists to rebalance the bench. The reality, however, is that, from a combination of a lack of resources and a lack of interest, Democrats at the state level are getting lapped by their Republican counterparts on judges.
To start, Republicans have been much quicker in their appointments. Georgia Governor Brian Kemp appointed Judge Carla Wong McMillian to the Supreme Court less than a month after Justice Robert Benham’s retirement. Similarly, Alaska Governor Mike Dunleavy and Iowa Governor Kim Reynolds made their appointments within a month of the respective vacancies opening. In contrast, Maine Supreme Court Justice Leigh Sauffley stepped off the Court on April 14, 2020. Governor Janet Mills still has yet to make an appointment three months later. Similarly, Connecticut Governor Ned Lamont waited more than two months after the retirement of Justice Richard Palmer to make his appointment, despite the fact that Justice Palmer was forced to retire due to age and the vacancy was predicted years in advance.
Even where they have made appointments, the nominees are remarkably different. For example, Justice McMillian, appointed by Kemp, is only 46. Dunleavy’s appointment of Dario Borghesan is only 40. Justice Matthew McDermott, appointed to the Iowa Supreme Court by Reynolds, is only 42. All three also have been active in conservative legal circles.
In comparison, look at the judges appointed by Democratic Governors this year. Gov. Jay Inslee’s appointees to the Washington Supreme Court were both in their 50s: Justice Raquel Montoya Lewis is 53, and Justice Helen Whitener is 55. And they’re the young ones. Justice Gordon Moore, appointed by Gov. Tim Walz to the Minnesota Supreme Court, is 57. Justice Catherine Connors, appointed by Mills in Maine, is 61. And Justice Andrew Horton, another Mills appointee, is seventy-one years old. Similarly, in Connecticut, Lamont has chosen Judge Christine Keller for the Supreme Court, a particularly myopic appointment, given that the 67-year-old jurist will be required to step off the Supreme Court in three years, just in time for Lamont’s successor to replace her.
Even where Democratic Governors have sought to make bolder appointments, they’ve been stymied by conservative opposition and a lack of liberal support. Take the case of Carl Folsom III, a forty-year-old Assistant Federal Public Defender who was tapped for the Kansas Court of Appeals by Gov. Laura Kelly. Folsom’s nomination was rejected by the Kansas Senate, where opponents disingenuously argued that Folsom was a poor choice because he had represented an accused child molester. Setting aside the fact that opponents should really be objecting to our Founding Fathers for codifying the Sixth Amendment, Folsom was a public defender and, as such, unable to select his clients. Yet, as his nomination went down, there was virtually no outcry outside of Kansas.
This past week, the Democratic Party announced that it would be revising its party platform, adding a plank calling for “structural changes” to the judiciary. Despite the vagueness of the change, it induced paroxyms of joy in many liberals, thrilled that Democrats were finally showing up to the gun fight with something more than a blade. However, structural changes are meaningless if political actors lack the will to take advantage of them. And watching Democrats let opportunity after opportunity to reshape the bench go by this year doesn’t raise confidence as to their performance next year. Despite the occasional bright spot (e.g. the appointment of Justice Fabiana Pierre Lewis to the New Jersey Supreme Court by Gov. Phil Murphy), Democrats have overlooked opportunities to reshape state appellate courts with young liberals. Liberals can only hope that a prospective President Biden doesn’t continue this pattern.