Well, that was a terrible night.
But let’s start with the good news: Despite gaining control of the Senate, there’s not much Republicans can do immediately to make our federal courts any worse. And without a pending Supreme Court vacancy, we can momentarily catch our breath and try to make some sense of the midterm election results.
Also—and I know we literally just finished one election, so bear with me here—the Senate electoral landscape going into 2016 is a tougher one for Republicans, as the Tea Party wave of 2010 comes up for re-election during a presidential year. That means, in theory at least, that Democrats can in 2016 run some electoral damage control and maybe even re-gain the Senate just in time for a fresh fight over Supreme Court nominations.
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But like everything having to do with the courts, it’s the long game that matters. And with conservatives now more than ever able to direct the judicial nomination process, we can expect our federal courts to slide even further to the right. Most immediately, President Obama and the Democrats will have to figure out which if any of their nominees Republicans would confirm. Remember Michael Boggs, the former legislator and judge of the Georgia Court of Appeals who President Obama nominated for the federal bench in Georgia? Ya know, the one who sees the Confederate flag as a symbol of Southern pride and who as a lawmaker supported extreme anti-abortion restrictions? His candidacy, and the back-room dealings with Republicans that made it possible, will become the rule and not the exception for judicial nominees for the remainder of Obama’s time in office. This is especially true should a vacancy on the Supreme Court open up in the next two years, so let’s all hope that doesn’t happen.
Now consider the appointment last year of Nina Pillard to the D.C. Circuit Court of Appeals. Pillard, a former Georgetown Law School Professor, was labeled an an “extremist” by Senate Republicans because while a professor at Georgetown Law School she argued that access to contraception and abortion is an important part of ensuring gender equality, and as an advocate she argued, and won, the critically important cases of United States v. Virginia, which opened the Virginia Military Institute to women, and Nevada Department of Human Resources v. Hibbs, which successfully defended the Family and Medical Leave Act against claims it was unconstitutional. Senate Democrats nearly shut down the Senate over Pillard’s confirmation, and while she is an excellent addition to the D.C. Circuit Court of Appeals, the reality is that with Republicans controlling the Senate we’re not getting another nominee like her, or any of the current crop of sitting female Supreme Court justices for a long, long time.
If Michael Boggs is an example of the kind of judicial candidates we could expect to see more of, while Nina Pillard is exactly the kind of candidate we will lose going forward, let’s talk about the kind of judicial candidate we can expect from Republicans. Consider the possibility of Supreme Court Justice Emilio Garza, nominated from the U.S. Fifth Circuit Court of Appeals. Garza has come up the ranks of the federal judiciary through Texas and is a favorite among conservative legal scholars. As a sitting judge on the nation’s most conservative federal appeals court, Garza dissented in the Fifth Circuit’s decision that allowed Mississippi’s only abortion clinic to remain open, opining that a federal constitutional right to abortion does not prevent states from regulating out of existence abortion providers within their borders.
Even more important than individual nominations, though, will be the possible effects on the long-term make-up of the federal bench. While President Obama has now appointed more nominees to the federal bench than his predecessor President George W. Bush, and while those nominees have undeniably been more diverse in both race and gender, in terms of ideology both Republicans and Democrats continue to nominate primarily pro-corporate, pro-prosecution candidates. If there’s a Republican-controlled Senate with, say, a President Scott Walker in 2016, this merging of pro-corporate, pro-prosecutorial interests will be complete. Without real ideological diversity on the federal bench, any other benefits of racial and gender diversity, such as developing jurisprudence that recognizes more nuanced forms of racial and gender oppression, begin to fade away. And this happens at a crucial policy moment for this country, as federal courts start the deep dive into current immigration and detention policies, voting rights restrictions, and yet another wave of coming reproductive rights restrictions.
But it gets even worse. In 2014 we saw record spending on state judicial elections, as the politicization of our federal courts has finally trickled down into our state judiciaries writ large. The impact of all this money on judicial elections will take some time to play out, but the early indicators are bad news for social justice and equality advocates. The more money judicial candidates have to spend to get elected, the more likely they are to take positions against the rights of criminal defendants and issue rulings that support corporate interests. As Joe Pinsker pointed out in The Atlantic, it is cheaper to buy a judge than a state senator these days, and as my colleague Zoe Greenberg reported, anti-choice activists have their sights set on stacking state courts with judges who support their regressive social agenda.
Which is all to say one of the most significant, long-term effects of the Republican electoral wave of 2014 will not just be who serves as justices in the courts, but who the courts decide are entitled to justice.