The Health of the Judiciary Isn’t the Real Problem for Democrats – South Carolina Lawyers Weekly

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Kevin J McMahon
Trinity College

It almost sounds like a bad joke: what did the 78-year-old male senator say to the 69-year-old female judge?

“Retire!”

In fact, that’s what happened recently when U.S. Sen. Richard Blumenthal, D-Conn., suggested that Sonia Sotomayor — the first Hispanic and third female Supreme Court justice — retire so that President Joe Biden has a younger and could probably appoint a healthier replacement.

Blumenthal is not alone. Fearing a repeat of Justice Ruth Bader Ginsburg’s death in September 2020 – just weeks before Election Day – progressives like Josh Barro, Mehdi Hasan and Nate Silver want to ensure that if Donald Trump beats Biden in November, he doesn’t get another chance gets more to do that. replacing a dead liberal justice with a young conservative ideologue.

If Sotomayor is indeed ill, she could legitimately choose to retire. But such calls are not clear assessments of the health of the justice system. Blumenthal and the progressive columnists calling for Sotomayor’s retirement are not doctors who have reviewed the justice files.

Instead, in my opinion as a political scientist who studies the Supreme Court, these calls are gimmicks actually designed to keep a Supreme Court seat in the hands of a liberal justice.

Long employment is a problem

Do not get me wrong. As I write in my new book, “A Supreme Court Like No Other: The Deepening Divide Between the Justices and the People,” the increasingly long term of office of justices is a serious problem for American democracy. The appointment of younger judges who stay much longer than before prevents the court’s membership from changing organically.

For example, consider a hypothetical I pose in my book. Judge Clarence Thomas once said that he plans to serve until he is 86 years old because, as he put it, “The Liberals have made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years.”

If Thomas, who at 75 is the oldest sitting judge, can deliver on that promise and no younger judge leaves the court before him, the US won’t see another vacancy until 2034.

A court that remained unchanged for twelve years would be unprecedented in American history. This is just one of the factors that has deepened the “democracy gap” between the judges and the people, which I define in the book as “the distance between the court and the electoral processes that grant it democratic legitimacy.”

Some reforms would prevent judges from spending an average of more than three decades on the high bench. But publicly calling for an ideologically aligned judge to retire is not one of them. It probably won’t work, and in Sotomayor’s case it was seen as sexist.

Perhaps more importantly, it misses the point.

Win elections, form the court

When it comes to the Supreme Court, progressives now find themselves in the position conservatives have found themselves in for years. They stand on the outside looking in.

Instead of advancing gimmicks that are unlikely to work, progressives could take a page from the playbook of conservatives who learned from liberals of the previous era: Take the argument to the people.

Winning on Election Day is the best way for either party to reshape the court. Consider how conservatives came to dominate the court. In election after election, Republican presidential candidates brought conservative voters to the polls by criticizing the Court’s most politically divisive decisions, such as Roe v. Wadeand promise a different kind of justice if given the opportunity to fill a seat.

Democrats often remained silent on the Supreme Court during these campaigns, preferring to draw voters to the polls on other issues. A 2016 exit poll question asked respondents about the importance of Supreme Court appointments in determining their vote for president. Twenty-one percent responded that this was “the” most important issue for them. And significantly, 56% of that 21% supported Trump, 15 percentage points more than those who supported Hillary Clinton.

When Trump named Neil Gorsuch as his first Supreme Court nominee just days after his presidential inauguration, he highlighted these data and said that “millions of voters” had backed him based on his promise to appoint conservatives to the court.

Voters are crucial

Progressives have already shown that the politically astute response to the conservative Supreme Court and its decisions is not to go after one of their own. It is intended to capitalize on the deep resentment that many Americans have toward some of the court’s decisions, especially the 2022 Dobbs ruling that overturned Roe.

Just weeks after the Dobbs v. Jackson Women’s Health Organization Following this decision, Kansans overwhelmingly rejected a proposed constitutional amendment that would have denied women the right to abortion in their state. In the 2022 midterm elections, the expected red wave turned into a ripple as Democrats pushed the abortion issue. And as the 2024 campaign season heats up, Democrats are ready to highlight their pro-Roe positions to draw voters to the polls.

History shows that parties can win elections after losing the Supreme Court. These parties have done this by strategically focusing on convincing voters to support them, rather than convincing judges to retire.

This article is republished from The Conversation.