On Wednesday, Supreme Court Justice Anthony Kennedy stood in the Rose Garden and announced his retirement, ending a 30-year run that began when he was appointed by President Reagan. Kennedy is no stranger to controversy—he was the unpredictable swing vote in dozens of landmark cases. His departure from the Supreme Court during the Trump era, however, has set the stage for what could be the most divisive judicial confirmation battle in decades.
While the average American may not have expected Kennedy’s retirement, grassroots organizations have been ready for this moment. Last year, conservative groups banded together in the 17 million dollar campaign to nominate Neil Gorsuch, and they’re prepared for a similar effort to unify Republicans around the next nominee. Meanwhile, progressive groups are on high alert, creating the potential for a new wave of civic engagement around Supreme Court Nominations.
There’s Historical Precedent for Grassroots Movements Around Supreme Court Nominations
Grassroots campaigns have become an integral part of American politics, seeping into policy initiatives in the Executive and Legislative branches. The anticipated nomination of a conservative justice into Kennedy’s seat would shift the court’s balance for decades or more. Organizations and individuals have an opportunity to weigh-in on the decision by sharing their opinions with their Senators, making a case for why someone should or should not be supported.
In 1987, Reagan and the Senate were embroiled in major gridlock over the nomination of Judge Robert Bork. A sharp conservative on his views about constitutional law and social issues, Bork’s nomination propelled intense grassroots efforts. The scope of coalition-building, and the sheer numbers of interest groups involved in the lobbying of senators, marked a watershed in the Senate’s role in judicial nominations. Coincidentally, the Senate’s rejection of Bork led to the nomination of Anthony Kennedy, who was unanimously confirmed.
Supreme Court Nominations in the Obama and Trump Eras
When President Obama nominated Merrick Garland to fill the vacancy on the court left by Scalia in 2016, Mitch McConnell and the Republicans in the Senate refused to confirm him or even hold a hearing, arguing it was an election year. Kansas Senator Jerry Moran broke from his party and argued he was willing to consider Merrick Garland. That’s when several right-leaning grassroots organizations mobilized in Kansas. After significant pressure from constituents, Moran eventually reversed course and blocked Garland’s nomination.
Since Scalia’s death in 2016, the Supreme Court has been a priority for many interest groups, especially when considering the age of the Justices—Ginsburg is 85, Breyer is 79, and Thomas is 70. NPR wrote in March about how Americans for Prosperity is turning its attention to promoting federal judges at the grassroots level. AFP is willing to spend nearly $1 million to confirm judges this year. As reported in Bloomberg, the Koch Network has stated their activists are ready for a similar grassroots battle for the Supreme Court, and are prepared to scale up their efforts and seriously engage their advocates. Nan Aron, president of the left-leaning Alliance for Justice argues, “it would be malpractice on our part not to be ready [to mobilize their supporters around the Supreme Court nomination].”
Senators Confirm Justices, But Voters Choose Senators
Kennedy’s retirement comes at a time when grassroots organizations have more resources and tools in the digital era to sway senators. While Americans don’t have the ability to elect Supreme Court Justices, we do have the power to elect the senators that confirm these nominations.
Senators serve six-year terms, but out of the 100 who represent 50 states, they can come up for re-election during presidential election years, midterms, and even during special elections. This means that midterm elections are just as important as presidential elections. According to PBS, the 2014 midterm elections dramatically altered the state of the Senate, but just 36 percent of eligible voters turned out to vote. With larger voter turnout for that midterm election, the Senate could have looked very different today.
The Supreme Court wields a lot of power, but our democracy has checks and balances that allow its citizens to have a say. Grassroots advocacy can unite like-minded individuals to raise their voices together.
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