Bench Memos

Law & the Courts

The Left’s Secret Judges List

Law School Graduates Supreme Court
(Erin Schaff/Reuters)

Last weekend, the New York Times ran a story about “Building the Bench,” an initiative led by liberal dark-money groups preparing a secret list of judges in case a Democrat wins in 2020, and in turn the opportunity to pack the federal courts with progressive judges in a post-Trump Era.

Their goal is to copy the wild success of “The List,” President Trump’s novel initiative in 2016 to publicize the specific names of individuals he would nominate to Justice Scalia’s Supreme Court seat following the justice’s death.

The individuals on then-candidate Trump’s list were well-respected federal and state judges.  The list demonstrated to voters that Trump was a presidential candidate who cared deeply about the courts and rule of law, and would in turn nominate justices and judges who were committed to the rule of law. When he supplemented the initial list in September 2016, Trump vowed to “appoint justices who, like Justice Scalia, will protect our liberty with the highest regard for the Constitution.”

The List proved instrumental to President Trump’s eventual victory in 2016.  Exit polls showed that for one in five voters in the 2016 election, the Supreme Court was the top issue. Of that group, 57 percent voted for President Trump. And President Trump made good on his campaign promise, first nominating Justice Neil Gorsuch and later Justice Brett Kavanaugh to seats on the Supreme Court.

But there’s one big difference between President Trump’s List and this new liberal initiative: Trump’s list was public, but this new liberal list is being kept secret.

One of its principal organizers and sponsors is reportedly Alliance for Justice, a progressive group that has fought vigorously against President Trump’s judicial nominees at every turn, often smearing and misrepresenting their records. (Look back at my post about now-D.C. Circuit judge Neomi Rao if you need to refresh your recollection about the AFJ and their antics.)

According to the New York Times, “a number of other liberal advocacy groups and labor unions” are partnering with AFJ to put up Building the Bench. But no one knows who exactly these unnamed “liberal advocacy groups” are, what they want from our courts, or who is funding them. The AFJ has posted on its website a job posting for a counsel to help run Building the Bench. The posting notes that one of the necessary qualifications is “[e]xperience in civil rights, labor, consumer and/or constitutional law,” hinting that the list is probably dominated by lawyers who hold extreme views on everything from racial preferences and unions to the Second Amendment.  Do any of these “liberal advocacy groups” have interests before the Supreme Court? Seems likely.

Recently we have heard quite a bit about the idea of expanding the Supreme Court, with a number of Democratic presidential candidates warmly embracing the idea. Kamala Harris has said that she is “open to increasing the numbers on the Supreme Court,” as have Senators Elizabeth Warren and Kirsten Gillibrand. Pete Buttigieg has floated a proposal to expand the number of justices on the Court from nine to 15, with five Republican-appointed justices, five-Democrat-appointed justices, with those ten selecting the other five (a plan that is very clearly unconstitutional).  Beto O’Rourke has suggested a similar plan to Buttigieg’s. Other lesser-known candidates, such as Governor Jay Inslee, Andrew Yang, and Wayne Messam have also said they would be open to adding justices on the Court.

When a Court-packing plan was last proposed in 1937 by President Franklin D. Roosevelt, it was correctly viewed as an illegitimate attempt by Roosevelt to do an end-run around the Supreme Court and its cool reception to FDR’s New Deal legislation. But history has a way of repeating itself, and now 82 years later, the majority of 2020 Democrat contenders are chiming in to support the very radical idea of packing the court with political agenda-driven justices.  And now there is a new dark money group to aid in the process of identifying and vetting those potential justices.

So the question remains: Who is on the list?  Why are the Democratic candidates, and these groups, so afraid to say exactly who they would want to nominate to the Supreme Court?  What are they hiding?

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

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