How Democrats lost the courts

When Democrats recite the parable of Goodwin Liu, they tell a story about Republican bad faith and foul play, but also one of their own failures. Progressives have largely ceded the judiciary to conservatives. Republicans have long been engaged in total warfare on the courts. They see liberal courts as an existential threat to the conservative project, and they have responded accordingly, building a well-funded machine to get true believers confirmed as judges. For years, Democrats never built an equal and opposite infrastructure for installing progressives on the federal bench.

The possible explanations are many: Democratic voters don’t care as much about courts as Republicans do; donors on the left didn’t invest in the courts the same way as those on the right have. But some Democrats are starting to suspect that the story is simpler: They’ve been chumps. They have clung to norms Republicans long ago abandoned. They have championed moderates in order to appeal to their enemies, only to watch those moderates twist in the wind. And they have turned up their nose at the idea that outside groups should run the judicial-nominations process, even when those groups are effective at what they do. Some progressives argue that they have honorably pursued good governance, trying to work within the federal government while their opponents turned the Federalist Society into an HR firm for Republican administrations. But grievances don’t change the facts: The conservative movement has been winning the battle for the federal courts.