The 2018 elections have come and gone, with both sides finding something to smile about in the results. For Republicans, the reinforced Senate majority ensures that Trump can continue to fill federal vacancies with conservatives. However, all is not lost for Democrats. Rather, they can adopt the successful model used by conservatives during the Obama Administration and use the states to advance progressive jurisprudence. Both state court appointments and solicitor general appointments have generally been used effectively by Republicans to build a bench of conservative judges and legal leaders. With electoral victories on the state level, it remains to be seen if progressives will catch up on these fronts.
Let’s throw out a hypothetical. Imagine we are back in 2017: President Trump has just been elected with a Republican Senate. Let’s say that Justice Anthony Kennedy announces his retirement in March 2017, announcing that he will retire in September of that year, giving the President six months in which to appoint his successor. It is a golden opportunity for Republicans to take a solid majority on the Supreme Court. However, instead of nominating Brett Kavanaugh, the Trump Administration nominates no one. The months tick down, one by one, and no nomination comes forward from the Trump Administration. September 2017 comes by, the Justice steps down, and still no nomination has come. The Supreme Court is forced into a 4-4 split, and important decisions are deadlocked. And still, no nominee is put forward. Now imagine we are in the present day and the Court is still split 4-4, with no nomination coming from the Administration and no explanation.
This hypothetical may seem absurd, but it is exactly what is currently happening in California, where Gov. Jerry Brown has essentially forfeited a golden opportunity to reshape the California Supreme Court, letting the court’s swing seat remain vacant for well over a year for no reason at all.
State Supreme Courts, which interpret state laws and constitutional provisions, are immensely powerful. In fact, many of their decisions are unreviewable, even by the Supreme Court. As such, it is remarkable to see the lack of attention given their way by progressives. Alongside Brown’s failure to make an appointment to the California Supreme Court, Colorado Gov. Hickenlooper appointed two Republicans to the Colorado Supreme Court, resulting in the partisan balance on the court actually becoming more conservative during his tenure as Governor. Similarly, in New York, Gov. Andrew Cuomo has largely avoided appointing outspoken liberals to the New York Court of Appeals, instead choosing moderates and conservatives including Judge Michael Garcia, a Republican who previously served as U.S. Attorney under President Bush. In Connecticut, Gov. Dannel Malloy’s nominee to be Chief Justice of the Connecticut Supreme Court was rejected by the Democratic Senate after moderate Democrats defected.
In contrast, Republican Governors have used their appointment power effectively to choose young conservatives for the state benches. Gov. Pete Ricketts, for example, tapped Justice Jonathan Papik, only 36, to the Nebraska Supreme Court in 2018. Similarly, Gov. Nathan Deal in Georgia has appointed a bevy of young conservatives, Justices Nels Petersen, Britt Grant (now on the 11th Cir.), Sarah Hawkins Warren, and Charlie Bethel. From Texas to Ohio to Indiana, Republican Governors have cemented conservative majorities on the high court through their appointments.
Now that the 2018 elections has resulted in the largest increase in new Democratic Governors since 1986, progressives have a strong opportunity to reshape the bench in many states. With the vacancy on the California Supreme Court still pending, it provides an early sign of how seriously they will take this challenge.
The 2018 election also saw Democrats taking control of the majority of state attorney general’s offices in the country. Attorneys general are important not just because of their investigative and prosecutorial powers, but because they are able to, through their appointment of state solicitors general, shape the legal landscape of their states.
State solicitors general are the leading appellate advocate for their states, shaping and directing arguments before state and federal courts. So far, most solicitors general are appointed by the attorney general. Most Republican attorneys general have taken this opportunity and chosen young conservatives and future legal pioneers. For example, Alabama Solicitor General Andrew Brasher is only 37, Florida Solicitor General Amit Agarwal is 42, Georgia Solicitor General Andrew Pinson is around 32, and Oklahoma Solicitor General Mithun Mansinghani is only 31 (and was just 29 when he was selected as Solicitor General). In comparison, Democratic attorneys general have selected senior attorneys already established in their career. For example, New York Solicitor General Barbara Underwood is 74, California Solicitor General Edward DuMont is 57, and Connecticut Solicitor General Jane Rosenberg is around 60 (an exception to this is Washington Solicitor General Noah Purcell, who is 38).
While the level of experience that Underwood, DuMont, and Rosenberg bring is undeniable, choosing younger solicitors general makes more sense from a movement perspective. First, it helps season young attorneys early in their career. Second, it builds a pipeline of potential judicial candidates. The Trump Administration has been very effective at tapping current and former state solicitors general for the federal bench, building the next generation of conservative legal leaders.
Ohio Gubernatorial candidate Richard Cordray was a politician who understood this well, having himself served as Ohio Solicitor General in his early 30s. As Attorney General, Cordray tapped Benjamin Mizer to serve as Ohio Solicitor General. Mizer, who was only 31 at the time of his appointment, went on to serve the Obama Administration as Principal Deputy Assistant Attorney General for the Civil Division, and is poised to be a Sixth Circuit and Supreme Court candidate under a Democratic Administration.
So far, newly elected New York Attorney General Tish James has chosen to reappoint Underwood to serve as Solicitor General. It’ll be interesting to see if other Attorneys General will follow James’ lead or Cordray’s.
Overall, despite the attention it gets, the federal bench is not the only front that legal conservatives and progressives fight over. Even as the federal bench shifts under the weight of Trump appointees, state benches can provide a countervailing force. As such, they are an important front to observe in the coming months.