10/27 - Supreme Court Nomination Shortlists
Updated: Jan 15
Since the nomination of Judge Amy Coney Barrett occurred in September of this year after the passing of Supreme Court judge Ruth Bader Ginsberg, there have been questions from both parties: how do supreme court nomination shortlists work? Is it the work from a secret organization, or are the President and their aides' work. A supreme court justice is a life term appointment, so it is a massive deal for the younger generation. All of Trump's nominees, including Amy Coney Barrett, have come from the Federalist society's approval. But where does that leave for the Democrat presidential nominee? I will tackle how U.S Presidents nominate, but I will first talk about the nomination and confirmation process.
Nomination and Confirmation:
One of the United States' most significant responsibilities is to nominate a supreme court justice. According to Article II, Section 2, clause 2 of the Appointments Clause, it states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court. The media often assumes that the President will nominate a judge that shares his/her political views on issues ranging from abortion to labor rights. Once the President nominates a candidate, it then goes to the Senate Judiciary Committee and holds a hearing on the nominee. In the hearings, senators within the committee ask questions on their qualifications and supreme court precedents like Roe v. Wade or Citizens United v. FEC. Once the committee votes yes on advancing the nomination, it goes to the full U.S senate for the nomination debate. The senate members used the opportunity to filibuster. It would not end without 3/5th (60 senators) of the Senate, but the Republican-led Senate in 2017 changed the rule, lowing to 51 votes to end the "nuclear option." Once the debate ends, the Senate votes on the nomination. If the present Senate votes a simple majority, then the nominee is confirmed; and if there is a tie, then the vice president casts the deciding vote. How do organizations lobby for judges? One notorious one seeks to take advantage of the broken system in Washington.
Federalist Society and the Donors Trust:
The federalist society is a conservative-leaning lobbying group that advocates for a textualist (as written) interpretation of the constitution. In the leadup to the Presidential elections, the Federalist society sends their conservative judges' wishlist for the Republican nominee, like a Christmas wishlist. The leader of the organization is Leonard Leo, who is the vice-president of this organization. He has a lot of power and influence through dark money. In the confirmation hearing of Amy Coney Barrett, Senator Sheldon Whitehouse (D-R.I) described how dark money is behind the work of Barrett's nomination. More than $250 million to make the Supreme court conservative so that they have favorable rulings on reversing Roe v. Wade, Obergefell v. Hodges, and Obamacare cases. He also added that their conservative judicial nominees have voted against workers' rights, the environment, voting rights, and women's rights, so they seem to be getting their money's worth. They also collaborate with Donors Trust, a shady organization that has funneled millions of dollars to make the supreme court and other federal courts conservative without disclosing where the money is coming from. One of the donors Trust is the Koch Brothers and the Devoses (Betsy Devos) family. Overall, they are taking advantage of Citizens United v. FEC's ruling, which allows unlimited spending in the political realms in Washington. There is no doubt that the conservative lobbying groups are powerful since they have infinite cash, leaving the left-leaning lobbying groups weak.
Demand Justice & American Constitution Society:
Since the Federalist society works for the Republican party, is there a left-leaning equivalent to the Federalist society? The short answer is no; there is no liberal federalist society. But two foundations are worth watching. One of them is the American Constitution Society (ACS), which is a left-leaning organization. It was established in 2001 after the Supreme court handed George W. Bush the presidency. However, they have less money because, in 2016, ACS made $6.5 million, while the Federalist Society made $26.7 million. And there are no "ACS" judges on the supreme court, so it is hard to compare it to the Federalist society. The other organization is the recently founded Demand Justice, an also left-leaning organization aiming to appoint liberal judicial nominees. It was founded in 2018 by former spokesperson of Hillary Clinton, Brian Fallon. Again they do not have the money resources, like the Federalist society. Overall, the left-leaning organizations that seek to help appoint liberal justices are at a disadvantage compared to the right-leaning organizations like the Federalist society. The only way we get to hear who the democrat presidential candidate nominee list is from the media. We never get to know their actual list until they are elected. But back to the question: why is the politicization of the supreme court nominees a problem?
Why politicization is a problem and what the proposal to it:
Over the years, The supreme court nominee list has been politicized. Since the ruling of the Citizens United v. FEC, we began to see money flowing into the supreme court. The purpose of fark money flowing into the supreme court is they want supreme court justices that favor corporations who pollute the environment and against labor rights. That is why the Pro Business lobbied in favor of Trumps' nominee because they knew that Neil Gorsuch and Brett Kavanaugh already had a record of siding with business interests. The politicization of the supreme court goes against what the founding fathers wanted for the supreme court. The top court's goal was to shield those arriving on the court from the political pressures of the day. Today these justices, however, are polarized along partisan lines in a way that mirrors our other institutions and makes it gridlocked. The two solutions to this problem are to overturn the Citizens United v. FEC and add more justices to the supreme court to reflect the diversity of this country.
Written by Brandon Blanco, Political Chair. The views expressed in the journal are their own and not the view of The La Raza Pre Law.