Democrats, Republicans, and Judges: How U.S. Parties Use the Courts in Campaigns

• In Event: Courts, Campaigns, and Electoral Politics

Abstract

During much of the 2016 presidential election year, the campaign was occurring while political maneuvering over the vacancy created by the death of Justice Antonin Scalia was playing out. The end result of that consequential election year was the appointment of Neil Gorsuch by President Donald Trump, soon after Trump’s inauguration. Even though the Scalia vacancy was in the background throughout much of the 2016 campaign, in her convention speech that summer, Hillary Clinton did not mention Scalia, the Supreme Court, Merrick Garland, or anything else directly connected to the ongoing effort to hold Scalia’s seat for a Republican president to fill in 2017. Similarly, the Democratic Party Platform of 2016 gave scant attention to the federal courts, judicial appointments, or the lingering vacancy on the Supreme Court, apart from a single statement connecting a Democratic president’s ability to appoint judges who would protect abortion and reconsider the Citizens United decision.

At his party’s national convention, Donald Trump specifically mentioned “our beloved Scalia” and the vacancy left on the Court by his death. Beyond that, Trump directly connected judicial appointments to gun rights, and more subtly to religious rights as well. In their party platform, the Republicans gave a good deal more attention to the federal judiciary than was seen in the Democratic platform, both in terms of the number of times the platform mentioned judges, and the length of those mentions. To put all of this more simply, at the exact time that the Democrats were watching a Supreme Court vacancy be wrested from them and handed to a Republican president, the Democratic Party barely mentioned the courts or the vacancy as an issue in the election.

In the 2020 Democratic Platform, judges and judicial appointments were mentioned more frequently than they were four years earlier. However, even after nearly four years of Republican efforts to pack the judiciary with young, conservative judges, Democratic Party efforts to focus on the judiciary took the form of boilerplate-like language about appointing diverse judges and creating new district and circuit judgeships “consistent with recommendations from the Judicial Conference.”

I am working on a long-term project examining how the federal courts and judicial appointments have been used by the Democratic and Republican parties in recent decades. For the 2021 APSA conference, I propose to present an analysis of how the two major parties have used the federal courts in appealing to voters in the United States since the 1970s. In my paper, I use party platforms and presidential candidate speeches to examine changes over time in how both parties utilize the judiciary as a campaign issue, in terms of how prominent the judiciary is as an issue and the rhetoric used by both parties in directing attention to the federal courts.

There is a good deal of evidence that the judiciary is more of a mobilizing campaign issue for Republicans than for Democrats. An examination of the recent evolution of how the two major parties use the judiciary as a campaign issue will provide some important leverage in understanding how the parties use the courts to appeal to various facets of their base. In addition, this analysis will help assess whether and how the Democratic Party has an opportunity to use the judiciary to rally its base as effectively as the Republican Party has done in recent years.

Author

• Lisa M. Holmes, University of Vermont