Why we're not likely to see Democrats release a list of judicial nominees

One of the most innovative and consequential decisions made by Donald Trump in the 2016 campaign was to release a list of potential Supreme Court nominees.  This list was a critical factor in helping Trump to gain the trust of conservative voters at a time when control of the Court hung in the balance.

In a recent interview, Georgetown Law professor Randy Barnett remarked that he "would love to see whoever the Democratic nominee's list would be ... so we can judge their nominees like his nominees were judged."

It would certainly make for an interesting contrast, wouldn't it?

However, it is very unlikely that we will ever see such a list from a Democratic nominee either during the primary or during the general election.

"One important explanation for the lack of Democratic lists," wrote John O. McGinnis, professor of constitutional law at Northwestern University, "is the extent to which identity politics dominates the Democratic Party."

Writing in Law and Liberty, McGinnis noted, "Any list offered by a Democrat would be picked apart by various identity politics interest groups for the percentage of jurists who represent that group's identity.  It would be almost impossible to satisfy all the groups."

An even more compelling reason for the unlikelihood of a Democratic list was offered by National Review's Ramesh Ponnuru: "Democratic appointees to the Supreme Court have been more reliable votes for Democratic priorities than Republican appointees have been for Republican ones."

Hence, Democratic constituencies are less in need of assurance that their judicial picks will advance the progressive agenda.

Surprisingly, since the Eisenhower administration, Republican presidents have filled nineteen Supreme Court seats, compared with only eight by Democratic presidents. However, some of the Republican picks have been indistinguishable from those made by Democrats (Brennan, Stevens, and Souter, for instance), while others (such as Powell and O'Connor) have been inconsistent at best.

Meanwhile, Democratic picks have been depressingly and consistently progressive.  When was the last time that any Democratic appointees have been regarded as "swing votes" in high-profile Court cases?

The result is that, despite all those Republican jurists, judicial activism has continued unabated.

Trump's decision to preview his judicial choices was thus not only a brilliant political move, but sound policy as well, ensuring that knowledgeable conservatives would have the opportunity to vet judicial nominees for their fidelity to constitutional principles.  Hopefully, it will serve as a precedent for future GOP presidential candidates.

But don't expect the Democrats to follow suit.

You can follow Nicholas J. Kaster on Twitter.

One of the most innovative and consequential decisions made by Donald Trump in the 2016 campaign was to release a list of potential Supreme Court nominees.  This list was a critical factor in helping Trump to gain the trust of conservative voters at a time when control of the Court hung in the balance.

In a recent interview, Georgetown Law professor Randy Barnett remarked that he "would love to see whoever the Democratic nominee's list would be ... so we can judge their nominees like his nominees were judged."

It would certainly make for an interesting contrast, wouldn't it?

However, it is very unlikely that we will ever see such a list from a Democratic nominee either during the primary or during the general election.

"One important explanation for the lack of Democratic lists," wrote John O. McGinnis, professor of constitutional law at Northwestern University, "is the extent to which identity politics dominates the Democratic Party."

Writing in Law and Liberty, McGinnis noted, "Any list offered by a Democrat would be picked apart by various identity politics interest groups for the percentage of jurists who represent that group's identity.  It would be almost impossible to satisfy all the groups."

An even more compelling reason for the unlikelihood of a Democratic list was offered by National Review's Ramesh Ponnuru: "Democratic appointees to the Supreme Court have been more reliable votes for Democratic priorities than Republican appointees have been for Republican ones."

Hence, Democratic constituencies are less in need of assurance that their judicial picks will advance the progressive agenda.

Surprisingly, since the Eisenhower administration, Republican presidents have filled nineteen Supreme Court seats, compared with only eight by Democratic presidents. However, some of the Republican picks have been indistinguishable from those made by Democrats (Brennan, Stevens, and Souter, for instance), while others (such as Powell and O'Connor) have been inconsistent at best.

Meanwhile, Democratic picks have been depressingly and consistently progressive.  When was the last time that any Democratic appointees have been regarded as "swing votes" in high-profile Court cases?

The result is that, despite all those Republican jurists, judicial activism has continued unabated.

Trump's decision to preview his judicial choices was thus not only a brilliant political move, but sound policy as well, ensuring that knowledgeable conservatives would have the opportunity to vet judicial nominees for their fidelity to constitutional principles.  Hopefully, it will serve as a precedent for future GOP presidential candidates.

But don't expect the Democrats to follow suit.

You can follow Nicholas J. Kaster on Twitter.