On Tuesday, hours before the fourth Democratic presidential debate, the liberal group Demand Justice released a short list of Supreme Court nominees for the candidates to adopt. Tragically but unsurprisingly, the list is packed with liberal activists, short on sitting judges, and dangerous for due process, free speech, and other constitutional values. Democrats would be wise to avoid this list and most of the names on it, but it seems likely at least one candidate — perhaps Beto O’Rourke? — will adopt it.
“Democrats running for President should tell primary voters who they might appoint to the Supreme Court. And they should be bold enough to pick someone who’s worked to defend civil rights, worker’s rights or reproductive rights – like those on this list,” Brian Fallon, Demand Justice’s executive director, tweeted.
Democrats running for President should tell primary voters who they might appoint to the Supreme Court. And they should be bold enough to pick someone who's worked to defend civil rights, worker's rights or reproductive rights – like those on this list:https://t.co/P8jpPLlV9b
— Brian Fallon (@brianefallon) October 15, 2019
Liberal activists, liberal journalists, and at least one Harvard professor have voiced their support for the list. Elie Mystal, the influential liberal executive editor at Above the Law, suggested to 2020 Democrats that if they adopt a similar short list, she would support them.
Yet the list includes many liberal radicals.
“These people are radicals,” Judicial Crisis Network Chief Counsel Carrie Severino tweeted. “This list is a dream come true for far-left activists who seek to turn the courts into a political super-legislature.”
These people are radicals. This list is a dream come true for far left activists who seek to turn the courts into a political super-legislature. https://t.co/AIPzWfNFyv
— Carrie Severino (@JCNSeverino) October 15, 2019
Severino further noted that only 8 of the 32 potential nominees on the list have judicial experience. “Which makes sense — they’re looking for activists, not judges. Trump’s list – with the sole exception of Sen. Mike Lee – was all judges, bc they were chosen for judicial philosophy, not political views,” she wrote in a tweet. “This is an attempt to return the Court to 1960’s style judicial activism – left wing judicial tyranny. They keep losing elections, so now they’re trying to pack the courts and get their agenda done with radical activist judges.”
Indeed, the left has long advocated for a “living Constitution” that amounts to redefining the Constitution to further liberal demands. Activists demand judges who will “protect the rights” of various liberal interest groups — rights that are not written in the Constitution. This short list only confirms that trend of turning courts into “super legislatures” that effectively make law, rather than uphold the Constitution.
Ironically, the Demand Justice short list may be too radical even for former President Barack Obama. “Amazing: there must be hundreds of federal judges Obama put on the courts, and only 4 make this list. This list would have been way too liberal for Obama,” Severino argued in her tweet.
Eight of the 32 potential nominees served in the Obama administration, many pushing some of Obama’s worst policies.
As KC Johnson, a history professor and co-author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, noted that the Demand Justice list included Catherine Lhamon, former assistant secretary for Civil Rights at the Department of Education. Her office sent the notorious “Dear Colleague” letter that unleashed a “sex bureaucracy” on American college campuses. That bureaucracy famously denied basic due process rights to men accused of sexual assault, ruining lives in the name of protecting “victims.” The Trump administration rightly began reversing it.
“The list’s including Catherine Lhamon … speaks volumes about how the activist left approaches campus fairness,” Johnson tweeted. “At virtually any other point b/w the 1950s and 2011, someone best known for eviscerating the rights of the accused would be seen as a pariah on the left, not as a possible Supreme Court nominee. Extraordinary shift in thinking in the last 8-10yrs.”
At virtually any other point b/w the 1950s and 2011, someone best known for eviscerating the rights of the accused would be seen as a pariah on the left, not as a possible Supreme Court nominee. Extraordinary shift in thinking in the last 8-10yrs.
— KC Johnson (@kcjohnson9) October 15, 2019
Johnson also criticized Vanita Gupta, former acting assistant attorney general at the Department of Justice’s Civil Rights Division. He noted that when the Trump DOE rescinded the “Dear colleague” letter, Gupta accused Education Secretary Betsy DeVos of “seeking to silence the voices of survivors of sexual assault.”
In addition to the eight Obama administration alumni, the Demand Justice list includes many activists for all sorts of liberal causes, from abortion to immigration to same-sex marriage.
These activists include: Brigitte Amiri, an ACLU abortion lawyer who argued that the federal government should fund abortions for illegal immigrants; Dale Ho, an ACLU lawyer and lead counsel in the legal attack on Trump’s U.S. Census citizenship question; Shannon Minter, a National Center for Lesbian Rights attorney who argued against Trump’s military policy reversing Obama’s transgender activism and who fought to legalize same-sex marriage in California before Proposition 8; Nina Perales, who represented DACA beneficiaries in suing Trump for reversing the Obama policy; and Cecilia Wang, an ACLU lawyer who fought Trump’s travel ban.
In other words, any 2020 Democrat endorsing this short list would let the cat out of the bag: making it abundantly clear that his or her Supreme Court nominations had more to do with declaring Trump policies unconstitutional than with defending the plain meaning of the Constitution.
Most terrifying, the liberal Supreme Court short list includes the current attorney general of California, Xavier Becerra, who is prosecuting a pro-life activist in a case that undermines free speech.
Like Kamala Harris before him, Becerra used the power of the state to silence David Daleiden after he released a slew of undercover sting videos showing Planned Parenthood staff admitting to selling aborted baby body parts for profit. Becerra, who like Harris was bankrolled by Planned Parenthood, filed 15 felony charges against Daleiden and his organization.
Peter Breen, vice president and senior counsel at the Thomas More Society, briefed PJ Media on the ongoing case last year. “I could point you to undercover investigations that are being shown on the evening news in Los Angeles. Under the standard they are applying to David, those would be felonies,” the lawyer argued. “The other reporters are being lauded for their brave investigative techniques, but David is being prosecuted. I would say this is an abuse of the criminal process.”
An activist like Becerra, who uses the power of law to deny the free speech of his political opponents, should never come within a hundred miles of a Supreme Court appointment. Yet here he is on a short list praised by prominent liberals.
Whether or not the 2020 Democrats endorse this list, it seems likely candidates will pick potential nominees from this list.
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.