[Editor’s Note: Phone2Action is writing a series of posts showing what is at stake in November’s election in different industries and policy areas. See the inaugural post for an overview.]
[UPDATE: Supreme Court Justice Ruth Bader Ginsburg passed away on September 18th, which will raise the issue of judiciary appointments as one of the main focus during the last stretch of the presidential race. Read about how a nomination has triggered advocacy in the past]
The sleeper races in this year’s election may be several hundred state judges and justices that are on the ballot across the country. It’s an issue you don’t hear much about.
Yet 280 state appellate court seats are up for election, and 35 states are holding supreme court elections, according to Ballotpedia. These lower court judges don’t get the same attention as the federal judiciary, yet they shape law on many controversial issues, including gun control, abortion and religious freedom.
Convincing voters to pay attention and cast a vote in races that are often ignored could be important in a year in which judicial appointments have far-reaching implications. Smart advocacy organizations know that many policy issues are decided in court and that the makeup of those courts can impact their mission directly. The next three months offer an opportunity to influence judicial appointments.
November’s election will have a massive impact on the shape of American courts and the criminal justice policies that guide them. The party that wins control of the White House and Congress in November will be able to appoint federal judges—perhaps even U.S. Supreme Court justices—and influence legislation to reshape police powers and prosecution procedures.
Criminal justice issues and the makeup of the courts will be front and center after as many as 26 million Americans took to the streets earlier this year—possibly the largest American movement ever—to protest the killing of George Floyd and support the Black Lives Matter movement. Here are some of the issues at stake:
The Federal Judiciary
Unlike many federal judges, candidates for state judicial positions often campaign on their views about important issues. For example, when Don Willet ran as a Republican for the Texas Supreme Court, he boasted of endorsements from groups with “pro-life, pro-faith, pro-family credentials.” He told party leaders that he would build such a fiercely conservative record that he would be unconfirmable for future positions in the federal judiciary.
Opinions held by people in judicial positions around the country has been an important issue in the past four years. The appointment of an increasingly conservative judiciary by President Trump is an issue that is sure to excite the Republican base this year. Evangelicals in particular see the current shape of the judiciary as an important Republican accomplishment. In fact, exit polls from 2016 show that Trump won by double digits among people who call the U.S. Supreme Court the most important factor in their vote.
Judicial appointments have been a key priority for Trump and Senate Majority Leader Mitch McConnell, and their work has had a profound impact on the federal judiciary. “If there’s a contest about the future of law, of judicial interpretations, Republicans have won,” Georgetown Law professor Paul Butler, a former prosecutor, told the PBS NewsHour.
That is because the Republican-controlled Senate has confirmed a staggering 200 judges appointed by Trump. By comparison, former President Barack Obama appointed 334 in eight years.
In addition, Trump’s judicial appointees are expected to play a significant role in shaping U.S. law because of their age and length of time they can serve. The average age of circuit court judges appointed under Trump is 49.4. Those appointed by Obama are, on average, 10 years older. Some of Trump’s judicial appointments have even been criticized by the American Bar Association for lacking enough legal experience.
The U.S. Supreme Court
If well-publicized, the issue of which party will get to shape the judiciary has the potential to galvanize Democrats as well. Indeed, Democratic Sen. Chris Coons of Delaware told the New York Times that the topic has not been “moving millions to the polls the way it should.”
Democratic wins in the White House and Congress (McConnell himself faces a credible election challenge) could slow the appointment of conservative judges, or even reverse its direction, from the Supreme Court on down.
While the lower court appointments have judicial ramifications that are not always obvious, the direction of the Supreme Court is one area that is sure to energize the electorate. Trump’s two Supreme Court appointments, Neil Gorsuch and Brett Kavanaugh, generated large amounts of advocacy, both for and against, during their hearings.
Organizations ran grassroots campaigns to communicate with lawmakers, asking them to support or oppose Gorsuch and Kavanaugh. Ultimately, the two were confirmed, giving the court a conservative majority. However, the justices have not yet ruled in a way that uniformly pleases Republicans.
Still, Republicans are campaigning hard on this issue. Both the Trump and McConnell campaigns are selling “Back-to-Back Supreme Court Champs” t-shirts. Trump has warned that his Democratic opponent would appoint a “radical lefty” to the court.
The crucial Supreme Court seat to watch is Ruth Bader Ginsburg. At 87, she has battled cancer and is likely to be the next justice to retire, leaving the next president to nominate her successor. As a liberal hero, Ginsburg holds as much symbolic value for the left as the late Antonin Scalia did for the right.
Joe Biden has vowed to put a Black woman on the Supreme Court. Some progressive activists also want Biden to expand the size of the Supreme Court. Whatever the outcome, Democrats can also be expected to move away from overwhelmingly white male judicial appointments.
Criminal Justice Legislation
Beyond the judiciary, the broader issue of criminal justice could draw more bipartisan action. Notably, the passage of the First Step Act in 2018, which changed minimum mandatory sentencing and made other reforms in an effort to reduce the U.S prison population, was an action that both political parties supported.
Yet, as the bill’s name implies, there is more work ahead. The killing of George Floyd at the hands of police and the protests that ensued across American gave rise to new efforts at police reform, such as banning choke holds; eliminating no-knock warrants; and provisions that would make it easier to prosecute officers. While the House passed a bill, the issue remains mired in the Senate, where lawmakers are arguing over key provisions. The legislation’s prospects this year are unclear.
Moving forward, much may depend on the election. Trump signed an executive order that contained some provisions, such as a national database of officers that have been terminated or criminally convicted for their behavior. But his rhetoric has run toward “law and order” speeches and away from reform efforts. He worked against the House bill. If Democrats take the White House or the Senate, the environment could be more favorable to police and criminal justice reform.
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