Hold Elected Officials Accountable on Judges | Opinion

We are in the midst of a struggle in this country between the pursuit of a multiracial democracy and the threat of authoritarianism. This battle is not playing out just at the ballot box or in the halls of Congress. It is playing out in court, in the decisions handed down by individual federal and state judges.

The Right has long understood the importance of the courts and has spent decades filling vacancies with ideologues ready to advance a partisan agenda. In recent years, the Left has taken note of the Right's packing and is now striving to redress the damage done. As constituents, we must hold elected officials at all levels accountable for their commitment to achieving judiciaries that reflect the demographic and professional diversity of the public they serve.

President Joe Biden has prioritized the federal courts since he was sworn into office and has made history in the diversity of his nominees. In sharp contrast to our majority white and majority male federal judiciary, President Biden's judges have been over 75 percent women and over 50 percent people of color. Compare that to former President Donald Trump's judges who were over 75 percent male and over 84 percent white.

The White House has also put a premium on professional diversity, recognizing that the federal judiciary is dominated by judges with backgrounds at big law firms and as prosecutors. Biden has prioritized candidates with experience as public defenders and in civil rights law. This includes Justice Ketanji Brown Jackson, the first former public defender to serve on the Supreme Court.

President Biden had 97 judges confirmed in his first two years. An optimistic view is that he can confirm at least another 138 in the next two years (exceeding President Trump's 234 confirmed judges). To achieve this, the president will need the Senate to step up. The previous Senate left a backlog of judicial nominees after failing to prioritize confirmations in the latter half of last year.

Even if President Biden ends his first term with over 234 confirmed judges, he will have filled less than a third of the federal bench. And of course, he has no role with regards to state judges. Prioritizing courts cannot be left to the White House. Other elected officials who claim to prioritize abortion rights, racial justice, worker's rights, election security—the list goes on—they too must prioritize the courts.

Judges are on the frontlines of abortion rights, hearing lawsuits aimed at striking down draconian abortion bans. Judges are on the frontlines of election security, as each election cycle now sees dozens of lawsuits aimed at overturning the will of voters. Quite simply, courts are on the frontlines of nearly every policy issue.

For its part, the Supreme Court has given a permission slip for lawsuits aimed at overturning long standing precedent and eroding or eliminating fundamental freedoms. Conservative lawyers are rushing to file increasingly outrageous lawsuits—lawsuits that have a chance of succeeding given the current make-up of the federal judiciary and the Supreme Court.

The rising sun creeps across Supreme Court
The rising sun creeps across the U.S. Supreme Court. Samuel Corum/Getty Images

Governors with the power to appoint or nominate judges should heed President Biden's lead and prioritize that responsibility. This includes putting a premium on diverse, qualified judges with track records vindicating fundamental freedoms. The judges a governor nominates or appoints could have a greater impact on their state than they do—and a longer lasting one.

Every judicial vacancy needs to be taken seriously and every judicial candidate scrutinized for their commitment to multiracial democracy and to fundamental freedoms. Federal judges have life tenure, and state judges either have tenure or are likely to be on the bench for decades before mandatory retirement. Either way, their potential impact on our lives and our laws is enormous.

Graduation from a particular law school or employment at a big law firm cannot be the exclusive criteria for the bench. Those experiences reflect a small fraction of the experiences in this country. When someone goes to court, they want to see someone who looks like them and who understands their experience. This is true in our elected officials, and it is true with judges.

It is our collective responsibility to prioritize the courts. During elections season, voters should prioritize judicial races in states that directly elect judges. In other states, voters should query gubernatorial candidates about their criteria for judges. In non-election years, constituents must hold elected officials accountable when it comes to the courts, just as we do for the legislation they sponsor or the laws they enact. The judicial candidates that an elected official supports, nominates, or appoints are a reflection of their values and priorities.

Pay attention to the courts and the elected officials responsible for filling judicial vacancies—and not just when it comes time to vote. Your fundamental freedoms could depend upon it.

Russ Feingold is president of the American Constitution Society and previously served 18 years as U.S. senator from Wisconsin.

The views expressed in this article are the writer's own.