Thirteen Candidates the Next Democratic President Should Seriously Consider For the Supreme Court

It’s been a busy week for SCOTUS-nerds. Last Monday, the Supreme Court kicked off for another blockbuster session, and last Tuesday, the liberal judicial group Demand Justice kicked off the latest bout of SCOTUS fever with its list of 32 prospective nominees under a Democratic president. The Demand Justice list has received some criticism for not being “realistic,” presumably by which the critics argue that the names of the list are likely to be overlooked for more mainstream candidates. While I’ve discussed that argument elsewhere, it is worth wondering: what would a “realistic” Democratic shortlist look like?

If a Democratic presidential candidate is foolish enough to task me with compiling their Supreme Court shortlist, here are the names I would suggest.

Chief Justice Cheri Beasley – North Carolina Supreme Court

Chief Justice Beasley made history earlier this year when she became the first African American woman to be Chief Justice of the North Carolina Supreme Court. While she has never served on the federal bench, the 53-year-old Beasley has twenty years of judicial experience, as well as experience in indigent defense, which is lacking in all of the current Supreme Court justices.

Justice Richard Bernstein – Michigan Supreme Court

With diversity key on the minds of many Supreme Court watchers, Justice Richard Bernstein would be the first Supreme Court nominee who has been diagnosed as legally blind. The 44-year-old Bernstein has demonstrated his intellect and his commitment for the rights of the disabled throughout his professional career and would add the perspective of a solo practitioner to the Supreme Court.

Judge Gregg Costa – U.S. Court of Appeals for the Fifth Circuit

The 47-year-old Costa currently serves on one of the most conservative courts in the country, where he has demonstrated a balanced and principled approach to the law. Costa, who clerked for the strongly conservative Chief Justice William Rehnquist, won the support of Sen. Ted Cruz in his appointment to the Fifth Circuit, demonstrating his evenhanded approach to the law.

Justice Mariano-Florentino Cuellar – California Supreme Court

While there are several extraordinarily qualified SCOTUS candidates on the California Supreme Court, my personal favorite is Justice Tino Cuellar. The 47-year-old Cuellar would be the first Hispanic male on the Supreme Court, and would bring extensive experience with administrative and constitutional law, providing a liberal intellectual counterweight to the originalists on the court. It doesn’t hurt that he is arguably the most liberal voice on the court.

Judge Michelle Friedland – U.S. Court of Appeals for the Ninth Circuit

The 47-year-old Friedland is the youngest Democratic appointee on the federal appellate bench and, as such, cannot be ignored. Friedland has stellar credentials for the Supreme Court, having clerked for Justice Sandra Day O’Connor and on the U.S. Court of Appeals for the D.C. Circuit. Despite the Ninth Circuit’s reputation as a conservative bugbear, Friedland is hardly the second coming of William Douglas. Rather, she has developed a moderate-liberal brand of jurisprudence on the Ninth Circuit, going where the law takes her and frequently getting the votes of more conservative judges.

Justice Melissa Hart – Colorado Supreme Court

The 49-year-old Hart has the least amount of judicial experience of any candidate on this list. Yet, her stellar credentials (clerked for Judge Guido Calabresi and Justice John Paul Stevens) make her impossible to ignore. Before she was appointed to the Colorado Supreme Court in 2017, Hart was a longtime legal academic, chairing the Byron White Center for the Study of American Constitutional Law at the University of Colorado Law School. As such, many compare Hart to Justice Elena Kagan (also a longtime academic before she joined the bench), and the similarities may bear out on the bench.

Judge Jane Kelly – U.S. Court of Appeals for the Eighth Circuit

Judge Kelly is my personal favorite for the Supreme Court. The Iowan graduated from Harvard Law School alongside President Obama in 1991. However, rather than taking a traditional law firm position, Kelly chose to be a public defender, spending her entire career defending the rights of indigent defendants. She continued this work even as she became a victim of crime herself, being attacked and left barely conscious while jogging. Kelly would provide a refreshingly different perspective on the Supreme Court, particularly on criminal justice issues.

Judge Patricia Millett – U.S. Court of Appeals for the D.C. Circuit

It is my personal (and completely uninformed) belief that, had Hillary Clinton won the 2016 election, Millett would have been her choice to replace Justice Scalia on the Supreme Court. The 56-year-old Millett is the oldest candidate on this list but still wins out due to quite possibly being the most qualified candidate in the country. Not only is Millett on the second most important court in the country, but, at the time of her confirmation, she had argued more cases before the Supreme Court than any other female advocate. Needless to say, there will be no learning curve for a Justice Millett.

Justice Raheem Mullins – Connecticut Supreme Court

The 41-year-old Mullins is the youngest candidate on this list. Despite his youth, however, Mullins does not lack judicial experience, having already been on the bench for seven years. Before he joined the bench, Mullins served as a prosecutor, but has proved to be a strong voice on the Connecticut Supreme Court, willing to go where the law takes him. For example, Mullins wrote for the Court in ordering the release of police records regarding Adam Lanza, the shooter in the Sandy Hook shooting of 2012. As a young, African American jurist, Mullins provides an intriguing possibility if Justice Clarence Thomas vacated his seat.

Justice Adrienne Nelson – Oregon Supreme Court

Justice Nelson has been breaking barriers throughout her life, including in high school, where she and her mother successfully sued to be named valedictorian of her graduating class, instead of a white student with a lower GPA. Last year, the 52-year-old Nelson became the first African American on the Oregon Supreme Court. If confirmed to the Supreme Court, Nelson would bring extensive experience working in indigent defense and in low income communities. Furthermore, for those who may question her credentials, Nelson has been on the bench longer than both Justices Gorsuch and Kavanaugh.

Judge Robin Rosenbaum – U.S. Court of Appeals for the Eleventh Circuit

The 53-year-old Rosenbaum has developed a reputation as the conscience of the Eleventh Circuit. A member of that court’s liberal wing, who frequently find themselves in dissent, Rosenbaum has won plaudits for her respectful and reasonable opinions. While Justice Sonia Sotomayor became the first judge in decades to have experience as a trial court judge, a Justice Rosenbaum would beat her out by one step. This is because Rosenbaum has served as a U.S. Magistrate Judge, a U.S. District Judge, and a U.S. Circuit Judge. It is a testament to Rosenbaum’s stellar reputation in Florida that she has won near unanimous approval at each of those steps.

Judge Srikanth Srinivasan – U.S. Court of Appeals for the D.C. Circuit

There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated. During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background. On the D.C. Circuit, Srinivasan has served as a liberal counterweight, moderating the conservative trend of the court. Additionally, if confirmed, Srinivasan would be the first Asian American, Indian American, and Hindu American on the Supreme Court.

Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit

The 52-year-old Watford is probably the most likely judge to see a promotion to the U.S. Supreme Court, with stellar credentials and a razor-sharp intellect. When Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so. Luckily for Watford, enough Republicans broke from the pack and supported him to allow him to clear the then-60 vote cloture threshhold and be confirmed.

While the former federal prosecutor, law firm partner, and SCOTUS clerk (Ginsburg) wouldn’t exactly be forging a new career path to the Supreme Court, it’s hard to deny Watford’s commitment to the law and his influence as a jurist.

In compiling any finite list, it is inevitable that qualified candidates are left out, and the exclusion of such names such as Justice Leondra Krueger, Judge David Barron, and Judge Adalberto Jordan is not a statement about their fitness. Rather, the overall goal of any such list is, ultimately, marketability, which means that you have to create a broadly acceptable group. Ultimately, each of these candidates has the ability and the experience to hit the ground running if confirmed to the Supreme Court. And the nation would be well-served with each of them.

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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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Judge Kavanaugh and the Failure of the Vetting Process

This blog started twenty months ago with a post titled “Why Vetting Matters.” That post noted:

“The modern appointments process involves several layers of “vetting” of potential judicial nominees. Candidates are generally first evaluated by their home state Senators and their staff. Then, they are vetted again by the White House Counsel’s office and the Department of Justice. They are then examined by the FBI and the American Bar Association (ABA). Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum. At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.”

Today, what we are seeing with regard to Judge Brett Kavanaugh is a failure of that process. A compelling and credible allegation of sexual assault has been raised against the judge, an allegation that did not surface during the vetting that he underwent for the Supreme Court, nor during his prior vetting for his current seat on the D.C. Circuit. Some have used this point to suggest that the allegation, raised by Dr. Christine Blasey Ford, should not be believed. I would argue, rather, that it is an indictment of our current vetting process and its limitations.

As noted in our opening post, the current vetting system for judicial nominees involves several entities, including the White House, the Department of Justice, the FBI, and Senate staff. In their investigation, the “vetters”, depending on their particular role, review all the written and background material submitted by the nominee, do criminal background checks, and conduct interviews with the nominee’s friends, colleagues, and associates. Again, depending on their role, the vetters might be looking for ideological inconsistencies, intellectual ability, or issues with the nominee’s truthfulness or character. The involvement of these different entities, along with outside groups such as the American Bar Association, is, in theory, supposed to ensure a thorough vetting of any nominee.

In practice, however, there are still holes in this process. Take allegations of sexual assault, for example, comparable to those made by Dr. Ford. Where the allegations have not been reported to the police, they will not show up in a criminal background check. Unless there has been news coverage or some public record of the allegations, they will not show up in Google or record searches. Furthermore, unless the nominee volunteers the information, it will not be revealed in the disclosures. As such, investigators generally probe such allegations of misconduct in their private interviews with the nominee’s friends, family, and colleagues.

However, even these interviews are unlikely to reveal such misconduct. Most DOJ, FBI, and ABA interviews are conducted either with friends and colleagues invested in the nominee’s success, or, with opposing counsel and judges who are too far removed to be aware of, let alone comfortable revealing, any allegations of impropriety. As such, unless an individual alleging misconduct is directly interviewed, it is unlikely that their allegations would be revealed in the interview process.

In the case of Judge Kavanaugh, the flaws in the vetting process may have been magnified by its speed. Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018. Judge Kavanaugh was announced as the nominee on July 9, just 12 days later. In comparison, President Obama nominated Justice Sotomayor 26 days after Justice Souter’s leaked retirement in 2009, and Justice Kagan 31 days after Justice Stevens’ retirement in 2010. Similarly, his nomination of Judge Merrick Garland in 2016 came 31 days after Justice Scalia’s untimely passing. While Justice Gorsuch’s nomination came 11 days after President Trump’s inauguration, it was to a vacancy that had been pending almost a year. Even assuming that Judge Kavanaugh had been partially vetted before Justice Kennedy’s retirement, the pace of his nomination was still incredibly fast.

Similarly, the Senate Judiciary Committee held a hearing on Judge Kavanaugh less than two months after his nomination despite the Committee not having a chance to look over significant portions of his record. As such, at the time of the hearing, only one of the 21 Judiciary Committee senators was even aware of Dr. Ford’s allegations.

At any rate, any deficiencies in the process could have been corrected once Dr. Ford’s allegations went public. At that point, the White House could have reopened Judge Kavanaugh’s background check, allowing the FBI to investigate the allegations (something they have done hundreds of times before). The White House chose not to. The Senate Judiciary Committee could have chosen to take sworn testimony from Dr. Ford’s corroborators, including those with whom she shared the allegations, and those who could corroborate the events in question. The Committee chose not to.

Instead, the American people were subjected to the spectacle of a sexual assault survivor being cross-examined by a prosecutor, while a gallery of stone-faced senators watched. No other witnesses were called, and no follow up questions were asked. If it was not for a carefully-negotiated rebellion on the part of Sen. Jeff Flake, there would have been no follow-up from Dr. Ford’s testimony at all.

Regardless of what the reopened FBI investigation uncovers, this saga has already laid bare the weaknesses of the current vetting process. Perhaps there is no foolproof way that unreported allegations of sexual assault can be uncovered through the vetting process. However, it is important to recognize that. Given the documented barriers to reporting sexual assault claims, there are likely other unreported claims against other federal judges and nominees. As such, the next time that similar allegations are raised against a nominee, vetters may need to look in the mirror before asking why the allegations were not uncovered earlier.

This blog reflects solely the views of the author and does not reflect the positions of any of the other writers or researchers at the Vetting Room.

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How to Fight a Supreme Court Nomination (And Win)

In case you were, like me, on a plane without wifi this afternoon, Justice Anthony Kennedy is retiring. Many on Twitter and in the blogosphere (not to mention the mainstream news) are bemoaning the loss of the Supreme Court “swing vote,” and decrying the “shortlist” put forward by the Trump Administration. Others, of course, are celebrating. Setting aside the dubious labeling of Justice Kennedy’s “legacy” happening, I want to address one key question: can liberals defeat the confirmation of Kennedy’s successor? And if they can, how will such a defeat happen?

A gut answer is that they can’t. Not that it’s impossible to defeat a Supreme Court nomination (see Merrick Garland), but it’s pretty difficult to do so while the President’s party controls the U.S. Senate. Five out of the last six defeated Supreme Court nominees went down before a Senate controlled by the opposing party. The exception, Harriet Miers, was doomed by conservative opposition, not the Democratic minority. As such, many observers have resigned themselves to Trump’s next nominee replacing Kennedy.

However, this does not mean that liberals can’t defeat a Trump SCOTUS nominee. In fact, I’d proffer that they can, provided that certain factors go their way.

1. Maintain Messaging Discipline

“I am not a member of any organized party – I am a Democrat”

The Will Rogers quote above may have been tongue in cheek, but it perfectly encapsulates Democrats’ current problem. Compared to Republicans, Democrats have a greater amount of ideological diversity within their party. This diversity has allowed Democrats to maintain a close gap in the Senate despite being sharply outnumbered in the number of states that lean in their direction. However, this diversity also means that it is difficult to keep the caucus united. However, if Democrats are to win a SCOTUS battle, it’ll be because they maintained, if not unity, then messaging discipline.

Take the example of Merrick Garland. Within hours of Justice Scalia’s passing, Senate Majority Leader Mitch McConnell announced that he would leave that seat open until after the 2016 Presidential election. That became the official stance of the Republican Party relatively quickly and stayed consistent throughout the election. To win this battle, Democrats need to maintain a similar messaging discipline.

2. Highlight the Right Messenger

Let’s say you’re a swing voter who is undecided about the new nominee President Trump has sent forward for Kennedy’s seat. The nominee seems smart, competent, and reminds you of your next door neighbor (the one who always has his lawn mowed). Now, you hear your Democratic senator call the nominee a “conservative ideologue” and an “extreme right-wing jurist.” Is that going to convince you to oppose the nominee? More importantly, will it persuade you to pick up the phone and call your senator? My guess is no.

Now, instead, let’s say you see the following ad on television:

A young man in a military uniform stands before an American flag. He explains that he and his brother enrolled in the military together to serve their country; that they served several tours of duty together. Then one day, his brother died. Not because of the enemy, but because the military contractor in charge of making body armor cut corners and sent him shoddy equipment. He goes on: his family sued the contractor, demanding justice, but that the case was thrown out by the judge on a technicality. Another judge would have given them a chance to refile. This judge didn’t care. And now the President wants to give this judge a promotion.

Isn’t that more likely to move you to action?

Even if you disagree with the example I’ve laid out, there is evidence that campaigns with a personal touch are remarkably effective.

In 2014, conservative groups successfully defeated the nomination of NAACP attorney Debo Adegbile to head the DOJ’s Civil Rights Division. The opposition was largely based on Adegbile’s representation of Mumia Abu-Jamal, who was convicted of the 1981 murder of Philadelphia police officer Daniel Faulkner. Conservatives effectively leveraged the testimony of Maureen Faulkner, the officer’s widow, who publicly urged senators to oppose Adegbile.

More recently, California voters threw out Judge Aaron Persky based on his sentencing Brock Turner, convicted of sexual assault, to a six months in prison. Persky’s recall, while supported by political officials, was ultimately kickstarted by the victim’s statement going viral, reinforcing the theme: highlighting the right messenger is key.

If Democrats do defeat the next SCOTUS nominee, it’ll be because they stepped back and highlighted the right messengers to make these arguments.

3. Raise the Political Cost of a Yes Vote

In 2014, I was meeting with the staffer of a Senate Democrat, a moderate and key swing vote, to urge the support of a particularly embattled nominee. I listed all the reasons that the nominee was well-qualified for the position, explained the spuriousness of the opposition’s charges, and detailed the importance of filling this position. The staffer listened to me politely. As I finished, he stated that he understood my points and added:

“If you want the senator to ignore the fact that constituents contacting the office in opposition outnumber supporters 10:1, that’s one thing; when it’s 100:1, our hands are tied.”

The staffer’s point was clear. The merits of a particular stance on a nominee don’t ultimately decide the vote. The vote is dictated by the political cost of voting yes. In this case, the senator couldn’t vote to support the nominee unless the political cost was lower.

Similarly, if liberals want to defeat a Trump SCOTUS nominee, their top priority needs to be to highlight the political costs of a “yes” vote. And this requires erasing the engagement gap.

4. Erase the Engagement Gap

Conservatives care more about courts than liberals. They have for years. It is because of their view on judges that Donald Trump is now President. It is because of their view on judges that McConnell felt politically safe in holding open a Supreme Court seat for a new President to fill, and why he feels safe in filling Kennedy’s vacancy, even though we are less than six months from an election.

There are many reasons why this engagement gap exists, not the least of which being that conservatives have carefully tilled the ground on court issues for the last forty years. Liberals, having focused on a variety of other issues, are now trying to catch up. I feel safe in predicting that, without erasing the engagement gap on judges, liberals cannot win a SCOTUS fight. And to erase the engagement gap, liberals need to build the appropriate infrastructure.

5. Build the Infrastructure

Name a prominent conservative organization:

Some of you would name the Federalist Society, the conservative legal organization whose membership card can be found in the wallets of many judges and nominees. Others might suggest the National Rifle Association (NRA), one of the most powerful pro-gun lobbying groups in the country. Other names should come to mind quickly: Focus on the Family; Moral Majority; Christian Coalition of America; Family Research Council, etc. What do all these organizations have in common? They are all involved in judicial politics (Now, the Federalist Society does not take positions on judges, but prominent FedSoc leader Leonard Leo advises the President on judicial issues).

Now name a prominent liberal organization:

Most of you would name the ACLU, which is one of the only organizations on the left whose fundraising and membership rival the conservative groups mentioned above. However, unlike the groups noted above, the ACLU does not take a position on nominations and steers clear of judicial politics.

While other organizations, including Planned Parenthood, NARAL, the Leadership Conference, and People for the American Way, do get involved on judges, their ability to mobilize voters and constituents still pales in comparison.

Take an example:

The Judicial Crisis Network, run by Justice Thomas clerk Carrie Severino, has raised and spent millions to fight Obama judges and promote Trump’s picks. Yet, no liberal equivalent existed until this year, when Demand Justice was founded.

To be clear, the infrastructure gap will not go away overnight, but Democrats will only be able to win a SCOTUS fight if they have managed to significantly narrow it.

As the SCOTUS fight unfolds and both sides flex their muscle, keep an eye on the five factors highlighted above. Conservatives have shown how to win on judges for decades, but if liberals can maintain unity, highlight the right messenger, raise the political cost of a yes vote, erase the engagement gap, and build the infrastructure, they may be able to pull off an upset.

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