Some good news in the battle to rebalance the courts

Supreme Court Justices pose for group photo with newly sworn in Justice Amy Coney Barrett on April 23, 2021
New York Times/Pool

After four years of court-packing by former President Trump and his Republican Senate allies, there is finally some good news in the battle to rebalance the judiciary and make it more reflective of the values and population of America.

The good news comes in three forms. 

First is the rapid pace of nominations and Senate approval to fill vacancies on the nation’s Federal District and Appeals Courts.

As of Oct. 28, a total of 26 Article III judges had been approved by the Senate. This includes 19 new District Court judges, and seven new Circuit Court judges.

By comparison, at the same time in Trump’s presidency, only six District and Appeals Court judges had been confirmed.

And another 19 District and Appeals Court judges are already in the pipeline, awaiting Senate action.

But the second piece of good news is that the Biden administration’s success nominating lower court judges and getting them confirmed is not simply a question of quantity — it’s all about quality. 

In the past, the federal bench has often been dominated by white men who came from white-shoe corporate law firms and the ranks of prosecutors. Biden’s nominees have included lawyers from many different ethnic backgrounds, and those with careers as civil rights lawyers, public interest lawyers and public defenders. And he has appointed a large number of women — including many women of color — as well as two barrier-breaking LGBTQ nominees.

Federal judges — at every level — make critical decisions every day that affect the lives of ordinary Americans. You can’t overstate the importance of making that judiciary reflect the values and cultures of ordinary people of all stripes — not just the corporate or academic elite.

The credit for the success of the movement to rebalance the lower courts goes to the Biden administration for nominating great candidates quickly; to Sen. Dick Durbin’s (D-Ill.) Senate Judiciary Committee for vetting these candidates efficiently; and to Senate Majority Leader Chuck Schumer’s (D-N.Y.) leadership moving them to the Senate floor for votes.

Credit also goes to the array of advocates that work to promote a balanced judiciary day in and day out — groups like the Leadership Conference on Civil and Human Rights, the Alliance for Justice, People for the American Way and Demand Justice.

All of them are working to keep up this pace the over three years remaining in the Biden presidency. But make no mistake, their ultimate success will also depend upon whether or not Democrats hold a majority in the Senate after the 2022 election.  

Of course, some might ask what good all of this court rebalancing at the District and Appeals Court levels does if the final arbiter of American law is a Supreme Court dominated by right-wing ideologues. This term, they are poised to consider critical legal issues that could affect the way we live our lives for decades. 

Trump and the Republican Senate packed the Supreme Court. First, Sen. Mitch McConnel (R-Ky,), when he was Senate majority leader, obstructed President Obama’s last nominee Merrick Garland — ostensibly because it was “too late” in Obama’s term. Then, Trump and the Republicans jammed through the nomination of Neil Gorsuch in 2017, and Brett Kavanaugh in 2018, and had the audacity to replace progressive icon Ruth Bader Ginsberg with right-winger Amy Coney Barrett after ballots in the 2020 Presidential Election were already being cast.

This term, the Supreme Court could make landmark decisions on questions ranging from abortion rights to gun violence prevention to the relationship of church and state.

What possible “good news” could there be about the Supreme Court? 

Plenty. The movement to expand — and re-balance — the Supreme Court is growing by the day. A bill to expand the Supreme Court now has 43 House Sponsors and two key Senate Sponsors – Sens. Ed Markey (D-Mass.) and Tina Smith (D-Minn.), and the number of sponsors is growing every week. 

It is critically important to our democratic society that all of our courts — and especially the Supreme Court — reflect the values of most Americans. That absolutely requires that over the next several years we must expand the Supreme Court and add justices that reflect those mainstream values instead of the priorities of the far-right minority.

But the growing movement to expand the court may have another short-term benefit as well. The threat posed by that movement may help to constrain the worst instincts of the Supreme Court’s conservative majority and restrain it from making decisions that are as extreme as many fear.

Bottom line: The movement to rebalance the courts is picking up steam by the day and every American who cares about the future of our democracy must put their shoulder to the wheel to assure that it succeeds.

Robert Creamer is a partner at Democracy Partners. He has worked has a political organizer and strategist for five decades and was a consultant to three Democratic presidential campaigns. He is the author of “Listen to Your Mother: Stand Up Straight: How Progressives Can Win.” Follow him on Twitter @rbcreamer

Tags Amy Coney Barrett Barack Obama Brett Kavanaugh Chuck Schumer Criminal justice Dick Durbin Donald Trump Ed Markey Federal Courts Judiciary Merrick Garland Neil Gorsuch Robert Creamer Supreme Court Tina Smith

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