Want Proof that Democrats Are Playing A Losing Game on Judges: Look to the States

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.

 

New Fronts in the Judicial War: Will Progressives Adopt the Conservative Model on State Courts and Solicitors General?

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.

State Courts

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.

Solicitors General

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.