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Group Pressures Democratic Candidates on Supreme Court Picks (2)

Oct. 15, 2019, 8:06 PMUpdated: Oct. 15, 2019, 9:36 PM

Democratic presidential candidates should speak up about who they’d nominate to the U.S. Supreme Court if elected, a liberal advocacy group said in releasing its own list of potential picks.

The list of 32 names spearheaded by Demand Justice was released before Democrats were set to take the debate stage Oct. 15 in the battleground state of Ohio.

Though some candidates lining up to be the one to take on President Donald Trump in November 2020 have expressed interest in expanding the court from its current count of nine justices, judicial nominations have never been a rallying cry for Democrats on the campaign trail.

Demand Justice would like to see that change.

It wants a list of potential judges to become part of Democratic platforms like it was for Trump’s campaign in 2016. A quarter of Republicans who voted for Trump in that election made the Supreme Court their priority, a Washington Post poll showed.

Trump has appointed two justices to fortify the conservative majority, Neil Gorsuch and Brett Kavanaugh.

Demand Justice’s list includes 19 women and 13 men. Possible nominees include former public defenders, plaintiffs’ lawyers, and eight federal and state court judges.

The limited number of judges stands out. “If we limit ourselves to that universe, we’re only tapping into a fraction on the legal community,” said Christopher Kang, chief counsel for Demand Justice. “We need to look to other dynamic candidates who aren’t currently judges.”

Of the current justices, only Elena Kagan had never been a judge. She was appointed by Barack Obama, a Democrat.

Demand Justice reached out to 200 legal professionals for ideas on who to include on its list, Kang said. The group also steered clear of those who have experience in corporate law. Both Kavanaugh and Gorsuch were federal appeals court judges when nominated.

The list includes more traditional picks like California Supreme Court Judge Goodwin Liu and Judge Jane L. Kelly of the U.S. Court of Appeals for the Eighth Circuit, but it also includes plaintiff’s lawyer Deepak Gupta and Rep. Katie Porter (D-Calif.).

These picks represent a more progressive pool of potential nominees than previously considered in part because Republicans who control the Senate changed procedural rules after Trump took office that makes it easier to confirm judges, including those nominated to the high court.

The absence of the filibuster requiring a 60-vote majority is the key difference between now and pre-Trump when it comes to judicial nominations, Kang said.

Carl Tobias, a professor at Richmond School of Law who focuses on judicial selection, said the Trump administration’s effort to pack the courts with conservative judges has forced Democrats to come up with a similar plan as they try to regain the White House and flip the Senate.

“The only proper response for Democrats is to do the same thing on the other end of the spectrum and that’s what, to some extent, that list looks like,” Tobias said referring to the Demand Justice roster.

Conservatives also noticed the more progressive backgrounds of the Demand Justice list. Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network that pushes for conservative judicial nominees, called the picks “radicals.”

“This list is a dream come true for far left activists who seek to turn the courts into a political super-legislature,” Severino said.

Other liberal groups said it might be premature for Democrats to be talking about judicial nominations.

“Now is the time to talk about the importance of the courts more generally and I think it’s a little bit early to talk about particular lists of nominees,” said Jill Dash, vice president of strategic engagement for the American Constitution Society.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com