One of the most consequential political developments in recent history has been the politicization and capture of the federal judiciary by the far right, which culminated during Donald Trump’s presidency. Between 2017 and 2021, Republicans not only appointed and confirmed a third of the Supreme Court’s current justices, but also filled more than 200 seats in the federal district and circuit courts. This was the result of decades of work by conservative intellectuals, elected officials and political operatives, all backed by generous funding from right-wing foundations and donors.
This brief will show how progressives hoping to counteract the right’s hostile takeover of the judiciary can develop their own strategy for reshaping the courts and the broader legal world, along with how to donate money for the biggest impact. Key to this strategy is understanding the process by which judicial nominees are scouted, recommended, nominated and confirmed, as well as the long-term process of building a pipeline for young, progressive lawyers to become future judges and influential legal thinkers.
In researching this brief, Blue Tent found four major areas where progressive donors can seek to influence the legal system:
- Lobbying on judicial nominations
- Court reform advocacy
- Pipeline-building and idea development
- Grassroots organizing around legal issues and judicial nominations
One of the key findings of this brief is that progressives are far behind on both funding and building the infrastructure necessary to compete with conservatives on judicial issues, both within the Democratic party as well as broader progressive spheres. Short-term fights to confirm judges may be unavoidable as a top priority during the Biden administration, but funding is desperately needed for other areas of the progressive legal world. Without investing in key, longer-term infrastructure and movement building, progressives risk falling further behind, with little hope of thwarting the next conservative assault on the courts.
What’s at stake
The federal judiciary wields immense power, especially in times of congressional gridlock or otherwise divided government. Federal courts, including both the districts and circuits, are responsible for hearing federal civil and criminal cases in their respective jurisdictions, including lawsuits challenging acts by congress or the executive branch, all of which must originate in a lower federal court before being taken up by the Supreme Court. Like the nation’s highest court, district and circuit courts are capable of overturning or upholding laws and executive actions, while also being responsible for the procedural record and written opinions that help lay the foundation for any higher court’s eventual rulings.
The judges given this responsibility are unelected and appointed for life, which makes it difficult for the public to influence their decisions or replace bad judges, even when there are serious ethical concerns. In addition to their power over cases and the interpretation of federal statutes and the constitution, federal circuit court judges are highly influential in shaping the legal profession; clerking for federal judges is a major credential for lawyers throughout their careers, and is considered a prerequisite for employment in many positions at the highest echelons of law. A federal judgeship, particularly at the circuit court level, is also a major credential for potential nominees to the Supreme Court, and decisions by lower court judges—even if those decisions are later overturned—can legitimize new or fringe legal theories.
With Democratic control of the White House and a one-vote majority in the Senate, progressive donors must recognize that now is the best time to focus their dollars on shaping the courts, and to do so aggressively. Moreover, with conservative legal groups like the Federalist Society continuing to grow their influence while shaping legal thought, progressive legal organizations must make both short- and long-term investments in their own legal movement now if they hope ever to catch up.
Strategies for impact and funding assessment
In order to make strategic choices on funding, it’s imperative for donors to understand the process by which federal judges are seated. Potential judges are typically recommended to the president by a senator representing the states in which a federal court sits.* The president makes their nomination, and the nominee is required to complete an extensive questionnaire and vetting process through the Senate Judiciary Committee, culminating in a confirmation hearing. The committee also elicits feedback from the public, including experts and special interest groups. The Senate Judiciary Committee then votes to advance the nomination to the full Senate, where a nominee can be confirmed by a simple majority.**
For donors hoping to make an impact on this process and wider issues dictating the character and makeup of the legal system, Blue Tent has identified four strategic areas for giving:
- Lobbying on judicial nominations: The most straightforward way to influence ongoing fights over the federal courts is for progressive activists and organizations to directly advocate for or against certain judicial nominees. This work includes meeting with senators and their staff members, activating constituents of decisive senators, and running media campaigns for or against particular nominees. The most experienced and active organizations doing this work now include groups solely focused on shaping the courts, as well as other litigation and advocacy organizations (such as civil rights or abortion rights groups) where judicial nominations often take a back seat to other important issues. Funders can play a role by donating to the groups on the leading edge of this work, and by sending feedback to the organizations expressing their desire for a stronger focus on judges and courts.
- Court reform advocacy: With the right’s takeover of both the Supreme Court and many lower courts in ways that could be irreversible under the current system, some progressive activists have begun advocating for structural changes to the courts themselves. The most well-known idea is to add several new seats to the Supreme Court, but some court reform organizations are also demanding an expansion of the lower courts, the implementation of term limits, and a stricter code of ethics for the Supreme Court in particular. Much like lobbying on judicial nominees, court reform work focuses on convincing elected officials and their staff members to endorse ideas or legislation, as well as educating and engaging the broader public to demand their elected officials support court reform. Funders can help get newer reform groups off the ground and/or support established organizations also in favor of court reform.
- Organizing: Aside from the Supreme Court, the judiciary is not currently a major driving issue for many voters, which makes pressuring senators to take action on judges or court reform a more difficult task. Advocates for more progressive judges and court reform policies would have much easier jobs if more of their constituents were better informed about and more invested in the federal judiciary. Some groups make occasional, short-term attempts to build bridges between their work and communities in a potential judge’s jurisdiction, but long-term organizing is not a high priority for most organizations focused on the courts. Funders would need to target the few groups engaged in organizing, and advocate for their dollars to be spent on this kind of work.
- Pipeline building, education and ideas: In order to staff the judiciary with progressives, senators will require a reliable pool of well-qualified lawyers committed to progressive views on the law, as well as the intellectual networks needed to develop those ideas. The right has built a well-oiled machine in this regard, with groups like the Federalist Society advancing conservative legal ideas while helping right wing lawyers gain the necessary credentials to advance their careers. Progressive groups like American Constitution Society have done some of the work in creating these networks, but liberals as a whole have failed to rally behind a concrete ideology that can counter the right's framework of textualism and originalism. Funders need to make investments in newer, more aggressive organizations focused on building a pipeline of deeply progressive legal thinkers.
Options for Donors
Below are five groups that Blue Tent has identified as either major players or promising new organizations in liberal efforts to shape the courts. Included is a short explanation of each organization’s work, experience, and track record, as well as Blue Tent's rating for those groups we have researched more extensively. (Explore our methodology.)
- Demand Justice: Founded in 2018 in response to the right’s takeover of the Supreme Court, Demand Justice has spent the previous three years fighting against Trump appointees and advocating for court reform policies, including expanding the Supreme Court and instituting term limits, creating a stronger code of judicial ethics, and expanding lower courts. Demand Justice is led by Christopher Kang and Brian Fallon, who have experience as high-level political staffers, giving them insight into the inner workings of Capitol Hill. The organization is also focused on trying to organize grassroots campaigns around judicial nominations and issues related to the courts, and has engaged in recruiting and training progressive lawyers as potential federal judges. Demand Justice has also worked in coalitions with other progressive legal groups, including many of those listed below. Funding for Demand Justice would support public advocacy campaigns around judges and court reform, as well as lobbying, pipeline-building and a nascent grassroots organizing push. Blue Tent strongly recommends giving to this organization as a high priority for donors. (Read our brief on Demand Justice.)
- People’s Parity Project (PPP): PPP was launched by a handful of Harvard Law School students in 2017 to combat the inequities that the corporate legal profession helps perpetuate. PPP now has chapters in more than a dozen law schools, and has been influential in changing mandatory arbitration policies at a number of major law firms. In 2020, PPP released a report breaking down the lack of racial, gender and professional diversity on the federal bench, along with a list of progressive lawyers to be considered for judicial appointments. PPP is funded through small grants and grassroots donors, but has had an outsized impact. The organization’s staff and board are primarily made up of young lawyers, while its advisory council includes a number of well-respected progressive law professors, attorneys and advocates. Blue Tent recommends giving to PPP as a high priority for donors to help the young organization expand its existing campaigns on judges and the legal profession, which would also contribute to the left’s legal pipeline and ideological movement-building. (Read our brief on PPP.)
- NAACP Legal Defense and Educational Fund: The NAACP Legal Defense Fund (LDF) has been involved in advocacy surrounding judicial nominees for the better part of a century. LDF regularly lobbies senators, staff members and the Senate Judiciary Committee on judges and other legal issues, and has engaged, in a limited capacity, in grassroots organizing on judicial nominations. Like other civil rights groups, LDF saw an increase in funding during the Trump years, but LDF spends the majority of its resources and time on civil rights litigation, with only a small share leftover for lobbying and advocacy on judicial nominations. Nonetheless, LDF maintains strong institutional knowledge, good relationships with key lawmakers, and high esteem among major funders, peers, and the general public, making them a reliable option for progressive donors.
- Take Back the Court (TBTC): TBTC was founded in 2018 by political scientist and gay rights activist Aaron Belkin in response to the unprecedented takeover of the Supreme Court under President Donald Trump. TBTC is also a single-issue organization, solely focused on expanding the federal courts to counter the right’s hostile takeover. TBTC’s advocacy has helped to popularize court expansion, with legislation introduced this year by Reps. Jerrold Nadler, Hank Johnson, Mondaire Jones and Sen. Ed Markey to add four seats to the Supreme Court. TBTC has also worked with organizations like Center for Popular Democracy, Data for Progress, Demos, People’s Parity Project, and others to pressure the White House and Congress to consider court expansion. Donating to TBTC would mean giving dollars for public advocacy and direct lobbying on the vital and popular issue of court reform.
- American Constitution Society: Often referred to as the liberal response to the Federalist Society, ACS was founded in 2001 to serve as a network for left-of-center lawyers, law students and legal thinkers. Unfortunately, despite being one the most seasoned and well funded liberal organizations focused on the courts, ACS has largely underperformed in its role. While the group has chapters of lawyers and law students across the country, ACS has failed to effectively advance a strong progressive legal ideology to counter the right. Likewise, the organization has spent much of its existence disengaged from politics, and can claim little success in convincing liberal voters and lawmakers to prioritize the courts. In 2020, former Wisconsin Senator Russ Feingold was appointed president of ACS, and the organization has become more aggressive and politically active. However, because of the organization's track record and questions around funding conflicts, Blue Tent advises donors to merely consider giving to ACS. (Read our brief on ACS.)
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* Senators themselves typically make recommendations based on lists of possible judges compiled by volunteer committees they themselves establish. The members of these committees are only sometimes publicly available on a senator’s website, while the process by which a given senator appoints their committee is not uniform nor always publicly available. Limited research on these committees suggests that corporate lawyers make up a disproportionate share of their membership. For more information on these committees, see the People’s Policy Project report “Democrats Need to Nominate Better Judges,” by Emma Steiner and Matt Bruenig.
** The filibuster for judicial nominations was eliminated by Democrats in 2013, while the filibuster for Supreme Court nominees was eliminated by Republicans in 2017. In 2019, Republicans weakened the Senate’s longstanding but unofficial “blue slip” policy, whereby the Senate Judiciary Committee will only advance a nominee if they are approved by both senators from the state where the nominee is to be seated. Republicans retained the “blue slip” process for district court judges, but eliminated it entirely for circuit courts. Democrats have indicated that they, too, will no longer require blue slips for circuit court nominees.
Additional Reading and Resources
“Rise of the Conservative Legal Movement” by Steven M. Teles, Princeton University Press
“Democrats Need to Nominate Better Judges” by Emma Steiner and Matt Bruenig, People’s Policy Project
“Unrig the Courts” by People’s Parity Project