Bench Memos

Law & the Courts

Demand Justice’s SCOTUS List Is Too Extreme Even for Obama

The U.S. Supreme Court building in Washington, D.C., March 20, 2019. (Leah Millis/Reuters)

This election season has seen an unprecedented repudiation of President Barack Obama and his legacy by far-left Democratic presidential candidates and left-wing interest groups who believe that his radical administration simply was not radical enough. Nowhere is that clearer than in the list of potential Supreme Court candidates released today by left-wing dark money group Demand Justice.

Demand Justice’s list has 32 names on it. Only four of those are Obama-nominated judges. Shockingly, only eight have any judicial experience at all! While President Trump’s list of Supreme Court nominees currently includes 24 individuals, of whom 23 are experienced federal or state judges, the extremists at Demand Justice have clearly taken a different tack. Their list — which they are lobbying Democratic candidates to adopt — is wholly consumed by far-left activism and identity politics.

They see the courts as their ticket to implementing their radical policy agenda, which includes gutting the First and Second Amendments, establishing a right to illegal immigration and abortion on demand straight through birth, and destroying our economy by imposing burdensome regulations on everyone from Main Street to Wall Street.

And the newly published list neatly lines up with their radical policy agenda. For every specific policy goal that the extreme left wants to implement, Demand Justice has provided a name — or two or three — of an ultra-liberal lawyer who has made that cause a focus of his or her activism.

For example, to implement their abortion on demand agenda, they have included Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, and Xavier Becerra, attorney general of California. When he was a member of the House of Representatives, Becerra in 2003 voted no on the bill banning partial-birth abortions that ultimately was signed into law. NYU Law professor Melissa Murray is also on the list, a self-proclaimed expert on “reproductive justice” issues who also testified against Brett Kavanaugh at his Senate confirmation hearing.

The Demand Justice list includes several individuals, such as Nina Perales and Thomas Saenz of the Mexican American Legal Defense and Educational Fund, who have fought against legislation aimed at discouraging illegal immigration and sanctuary cities. Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, advocated vigorously against the Trump administration’s executive order that would have required a question about citizenship on the 2020 census. Gupta argued that inclusion of a citizenship question would “weaponize” the census. Dale Ho, director of the ACLU Voting Rights Project, was lead counsel in Department of Commerce v. New York, the Supreme Court case about the inclusion of the citizenship question on the census.

There also quite a few individuals on the list who have dedicated their careers to defending unions, including Nicole Berner, general counsel for the Service Employees International Union; and professor Sharon Block, executive director of the labor and worklife program at Harvard Law School and a former member of the National Labor Relations Board during the Obama administration.

Also on the list is Deepak Gupta, a former senior attorney for Elizabeth Warren’s Consumer Financial Protection Bureau, which has significantly increased the regulatory burden on everyday consumers since its inception nearly a decade ago.

And don’t forget about the far left’s desire to gut our criminal laws. Bryan Stevenson is the founder and executive director of the Equal Justice Initiative, which is committed to “to ending mass incarceration and excessive punishment in the United States.” James Forman Jr. is a Yale Law professor whose research is dedicated to this same mission.

Of course, in order to implement a policy agenda through the courts, you need judges who subscribe to an interpretive theory of the Constitution that can easily locate new rights. Demand Justice has that covered too. They’ve included names like Goodwin Liu and Pamela Karlan (former and current law professors), who disavow Originalism and textualism. Liu once said in an American Constitution Society podcast: “the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.” Likewise Karlan has written: “Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.” Another extremist on the list, Michelle Alexander, is more forthright in articulating the left’s belief that its hope lies outside the democratic process: “I no longer believe we can ‘win’ justice simply by filing lawsuits, flexing our political muscles or boosting voter turnout.” This is who Demand Justice wants to put on the Supreme Court.

This post only begins to scratch the surface on the Demand Justice list, and I will be looking at the proposed individuals in further depth in the weeks and months to come. But make no mistake, these are the kinds of judges that Demand Justice and others on the extreme left want, not just on the Supreme Court, but also on the lower federal courts. These individuals are far-left ideologues who are out of touch with the mainstream, much like the nominees who will be taking the stage tonight.  (If you have any doubt about that, check out footage of Beto O’Rourke last week claiming that colleges, churches, and charities should be stripped of their tax-exempt status).

I do agree with Demand Justice and Brian Fallon about one thing, however: The presidential candidates should be asked whom they would nominate to the Supreme Court. #ReleaseTheList


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