Bench Memos

Law & the Courts

A Secret Judges List?

The second night of the first Democratic presidential candidates debate in Miami, Fla. June 27, 2019 (Mike Segar/Reuters)
It Depends on the What the Meaning of the Word “List” Is

Last month, the New York Times ran a story about left-wing dark-money groups preparing a secret list of judges in case a Democrat is elected president in 2020. According to the Times, “liberal judicial activists have begun a new effort to recommend possible successors who could immediately be funneled into the judicial pipeline.”

The Times reported that the new initiative was called “Building the Bench,” and was being underwritten by the Alliance for Justice, as well as a number of other (unnamed) “liberal advocacy groups and labor unions.”  But here was the kicker: “Unlike the unprecedented Trump list, the liberal groups do not intend to make their recommendations public.”

I responded in this space, wondering why Democratic candidates and these groups were so afraid to say exactly who they would want to nominate to the Supreme Court. My organization, JCN, also ran an ad during the first Democratic debates. We asked: “What are they hiding?” and urged the candidates to release their lists.  In 2016, President Trump told voters exactly who he would nominate to fill the seat left vacant by Justice Antonin Scalia. Why all the secrecy from Democrats?

But Nan Aron, President of the Alliance for Justice, has vehemently denied the existence of a list. Yesterday Aron told the Daily Beast, “I’m not sure where Carrie Severino got the idea of a list.”  Aron tried to set the record straight, saying that AFJ is not creating a list but rather “evaluating potential judicial nominees for a future Democratic president.”

Ohhhhh. I see. They are “evaluating potential judicial nominees.” Who happen to be unnamed.  This is more of, say, a collection?  DEFINITELY NOT A SECRET LIST.

Laurie Kinney, communications director for AFJ, told Yahoo News similarly said that her organization is “identifying potential judicial nominees for a future Democratic administration.”  Kinney went on to tell Yahoo News that AFJ was “trying to sound out progressives about promising lawyers who could be stars on the federal bench in a Democratic administration.”

And apparently, none of those promising lawyers Kinney described will be a part of anything that could possibly resemble something that could be fairly described as A LIST.

Nan Aron gave a helpful clarifying quote to Yahoo News: “Building the Bench is about making the next administration and senators aware of the broad pool of legal talent that should be considered for appointments to the federal bench.”

I see now. “A pool” of names. What crazy person could ever think that was the same thing as a list? A pool is completely different. A list would have names organized in a column. Maybe multiple columns. In a pool, the names would be all jumbled up. Perhaps this would be more like picking names out of a hat?  Nobody would ever call that a list.

So what do we know now? Pretty much exactly what we did a month ago. A liberal dark-money group is claiming to be building a secret list of judges in the event that a Democrat wins in 2020 and there is a Supreme Court vacancy.

One thing we do know more about now is the identity of some of the other liberal groups that might be involved. AFJ Aron told Bloomberg that it “will work with progressive organizations including Planned Parenthood, the Mexican American Legal Defense and Educational Fund, People For the American Way, and the NAACP Legal Defense Fund” to identify potential judges.

Aron also makes the laughable claim that Building the Bench will be a “much more open, transparent, and democratic process than exists on the far right.”

My response? Release the List.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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