In some ways, it’s not surprising that American progressives – even activists – are prone to be blasé or MIA when it comes to the selection of federal judges. After all, it’s one thing to get fired up and become an activist over who gets elected president or even to rally for or against a controversial law. It’s quite another, at first blush anyway, to devote one’s time and passion to the matter of who serves in that most staid and aloof of public institutions – the federal judiciary.
How do you get people revved up to do battle over which successful, middle-aged lawyer will be plucked from his or her successful, high powered job and given a life appointment to wear a black robe and write book-length “opinions” about legal doctrines that most average Americans have never contemplated? It’s just so far removed from most people’s experience and…unsexy.
Well, here’s one way to tackle the problem: Tell them about last Friday’s ruling by the United States Court of Appeals for the Fourth Circuit that struck down North Carolina’s “monster” voter suppression law. As was explained here and in countless other news stories and editorials throughout the nation over this past weekend, the ruling struck a immense blow for the future of democracy, inclusion and the effort to combat discrimination. As the New York Times observed in a weekend editorial:
“The scurrilous attempt by North Carolina Republicans to suppress the rising power of black voters was struck down on Friday by a federal appeals court that concluded that the state’s voting strictures ‘target African-Americans with almost surgical precision.’”
The decision means that the voting power of black citizens in the important swing state will not be hobbled in November by a repressive 2013 law that the court found was steeped in blatant racism, in violation of the Constitution. ‘Because of race, the Legislature enacted one of the largest restrictions of the franchise in modern North Carolina history,’ the court ruled.”
The editorial concluded this way:
“For all the lofty rhetoric the nation heard in the last two weeks about democracy at the Republican and Democratic Party conventions, these recent federal court decisions show the grimier reality of politics and the bitter struggle for basic fairness beyond the national spotlight. The black voters of North Carolina have won a major victory and will now have a better chance of making a difference come November.”
In other words, when faced with a crucial matter that went straight to the heart of the democratic process, three smart and courageous federal judges enforced the Constitution, schooled a lower court judge by actually looking at the evidence and striking down a law that adversely impacted the fundamental rights of hundreds of thousands of citizens, and made the state of North Carolina a significantly more honest and equitable place.
Why courts matter
But, of course, the issue of voting rights is just one of many vital subjects on which the federal courts rule every day. Just yesterday, a federal judge in Winston-Salem heard arguments on whether he should bar state officials from enforcing the infamous HB2 law. Indeed, in this era of divided government, it’s the federal courts that are, increasingly, casting the deciding vote on all manner of critically important matters.
A few years back, in recognition of this reality, the good people at the Center for American Progress and the National Council of Jewish Women made the decision to launch a new initiative (of which NC Policy Watch is a participant) called “Why Courts Matter.” This is from the website that accompanies the effort:
“Our nation’s federal courts make rulings on virtually every issue that is important to Americans. Although most Americans are familiar with the Supreme Court, many are surprised to hear that more than 900 judges have lifetime appointments to serve on lower federal courts and hear thousands of times the number that the Supreme Court hears. And most of the time it’s these lower courts that have the final say.”
The site goes on to highlight a baker’s dozen issues (gun violence, religious liberty, LGBT equality, money in politics, reproductive rights, immigration, corporations, civil rights, health care, voting rights, criminal justice, diversity and the environment) in which the federal courts play an absolutely essential role.
As it notes, presciently, in the “infographic” section on voting rights:
“In the wake of [the nation’s] changing electorate, states are…creating procedural hurdles that make it more difficult to register to vote, harder to prove one’s residency, and significantly reduce voting opportunities. According to The Brennan Center for Justice, in 2013 alone, 33 states introduced at least 92 restrictive voting bills.”
After calling out the 2013 Shelby County v. Holder decision by the Supreme Court, which took place prior to the death of Justice Antonin Scalia and severely harmed voting rights, it continued:
“Federal courts will continue to make decisions that impact voters’ access to the ballot box and, in turn, the health of our democracy.
Judges who sit on our federal courts matter. We must have fair, diverse judges on the bench who will uphold the Constitution, enforce our voting rights laws, and ensure that all who are eligible to vote can freely exercise that right.”
Making it happen: The hardball politics of nominating and confirming federal judges
It’s one thing to talk about the importance of a judiciary filled with fair and diverse judges who effectively reflect the American public, but it’s quite another to make it a reality. Ironically, for the past few decades, it’s been the American conservative movement that’s been far more effective at influencing who sits on the federal bench. Despite the Right’s constant public complaints and crocodile tears about “unelected, activist” judges, behind the scenes, groups like the National Rifle Association and the Concerned Women of America have had a hugely influential and disproportionate impact in getting judges nominated and confirmed who reflect their values – many of whom (Scalia, Samuel Alito, Clarence Thomas stand out) can only be described as right-wing “activist” judges.
For years now, groups like these have inundated and intimidated members of Congress – especially the Senators who must oversee the confirmation process – when it comes to judicial nominees. Indeed, it’s in large measure in response to the far right’s determined and persistent activism that the U.S. Senate has blocked so many of President Obama’s appointments – including most notoriously and for the longest period in U.S. history – Supreme Court nominee Merrick Garland.
And still, several good judges have been able to run the gauntlet and win confirmation in the Senate – often by unanimous or near unanimous votes after the months or years of inexcusable and unexplained delays. Judge James Wynn, one of the three judges on the panel that decided the voter I.D. case last week, is a classic example. He was first nominated to serve on the Fourth Circuit in 1999 by President Clinton. It took 11 years, however, before he was finally confirmed (unanimously) after being re-nominated by President Obama.
The bottom line: After seven years in office, President Obama clearly has made a difference in restoring some balance to the federal judiciary. The lawyers he has nominated have been the most diverse – in terms of gender, ethnicity, occupation and background – in history. As the Fourth Circuit decision demonstrates, this is having an important real world impact.
That said; there is still a long, long way to go before the federal courts (much less the state courts) come close to truly reflecting the American melting pot that they are supposed to serve.
What’s more, while elections are important in this process, ultimately, the only way that we will ever see the kind of transformative change that’s truly necessary is if progressives best conservative activists at their own game by bringing a fervent, relentless, 365-days-a-year commitment to the cause.
Let’s hope last Friday’s decision helps spur a new wave of activism to do precisely that.