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Commentary Law and Policy

Can Democrats Undo the Republican Takeover of the Federal Courts?

Jessica Mason Pieklo

Democrats gathered at a forum Saturday in New Hampshire to offer their plans to fix the federal courts. They didn't have much to offer.

With the help of Senate Republicans and the Federalist Society, President Donald Trump is transforming the federal judiciary.

In the first three years of his presidency, he’s appointed nearly 200 ideologues, most of them young white men, to lifetime positions on the bench. This has created a political crisis for Democrats, one for which they have no clear plan.

That was the takeaway Saturday at the conclusion of the the first-ever presidential forum dedicated to the federal courts. “Our Rights, Our Courts” was hosted by a group of New Hampshire civic leaders, Demand Justice Initiative, Center for Reproductive Rights, NARAL Pro-Choice America, and All* Above All Action Fund, and it brought together several Democratic presidential candidates. Former South Bend Mayor Pete Buttigieg, U.S. Sens. Bernie Sanders (VT), Amy Klobuchar (MN), Elizabeth Warren (MA), and Michael Bennet (CO), along with billionaire activist Tom Steyer and entrepreneur Andrew Yang participated in the event.

Candidates on Saturday agreed that the conservative capture of the federal courts is a big problem for Democrats and progressive policies that could be stymied by Trump’s federal judges. But no candidate seemed to have any idea of what to do about it. Buttigieg, Yang, and Sanders all offered proposed structural changes designed to temper the effect of Trump’s Supreme Court appointments, such as expanding the number of seats on the Court or ending lifetime appointments. Klobuchar proposed requiring Supreme Court justices be bound by ethics rules, and Warren made a compelling case to center the federal courts as an electoral issue.

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Every candidate talked about the need to appoint qualified individuals to the federal courts, but no candidate addressed the problem of having few if any judicial vacancies left to fill should a Democrat be elected president in November.

The candidates’ plans for dealing with abortion rights in the courts were equally unsatisfying.

The Republican takeover of the federal courts poses a real threat to legal abortion, which is why reproductive rights was a primary focus of Saturday’s forum. Codifying Roe v. Wade and funding Planned Parenthood were popular responses to questions about how the candidates would protect abortion rights. But like the answers to how the candidates would fix the courts, they failed to grasp the severity of the crisis in front of us. Codifying Roe does nothing to roll back forced waiting periods, insurance coverage restrictions for abortion care, and the hundreds of other abortion restrictions already in place across the United States. Funding Planned Parenthood does nothing to ensure abortion care is affordable, let alone support independent abortion providers.

As a candidate, Trump campaigned on a promise to appoint judges intent on overturning Roe. He’s made good on that promise. Hostility to abortion rights is one unifying feature of Trump’s federal judges, and with state lawmakers passing extreme abortion bans designed to challenge Roe, and the Supreme Court set to hear oral arguments in March in the first abortion rights case with two of Trump’s justices on the Court, we’ll see the impact of those appointments sooner rather than later.

There’s every reason to believe the impact will be devastating.

We’re in nothing short of a constitutional crisis when it comes to abortion rights, one made possible by the conservative takeover of the federal courts. The only thing preventing total and near-total abortion bans in Missouri, Mississippi, Alabama, and Kentucky from taking effect has been federal judges unwilling to take up the challenge by anti-choice lawmakers to overturn abortion rights precedent and let one of these measures stand. Quite simply, the federal courts have served as a firewall for protecting our rights, and Democrats have taken it for granted.

Saturday’s forum is a step in the right direction by making the federal courts an electoral issue. But wow, Democratic presidential candidates have a long way to go before they can claim the party is on a path to fixing the courts.

Saturday felt like a missed opportunity. For example, at a forum focused on abortion rights and the courts, Buttigieg wasn’t asked about Purvi Patel, the Indiana woman prosecuted and originally sentenced to 20 years in prison for allegedly self-terminating her pregnancy. Nor was he asked about the fight while he was mayor to open a new clinic in South Bend, Indiana, in a case that may find its way before the Supreme Court next term.

Inexplicably, MSNBC’s Stephanie Ruhle asked several candidates for their views on “late-term” abortion and the “free contraception” offered under Obamacare, proving that even so-called liberal media outlets still lean on anti-choice talking points to frame the abortion rights debate.

If Democrats are going to deal with the constitutional crisis created by the Republican takeover of the federal courts, they are going to have to offer bold policy solutions, not dither around the edges as they did during Saturday’s forum. We need more judges and more courts. We probably need more states, and the likely Democratic Senate votes those new states would bring with them.

We need policy proposals as big and radical as the challenge posed by Republicans holding control of the federal courts. Democrats, unfortunately, have yet to offer any.

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