This is another installment of an ongoing series of posts summarizing 2020 Democratic presidential candidates' views on judges and the courts.  All posts in this series can be viewed here.

On Neil Gorsuch:     Voted no.[1]

• On April 4, 2017, Senator Sanders addressed the floor of the Senate to oppose Neil Gorsuch. Sanders stated that he was basing his decision to vote no partly on the fact that he did not believe Gorsuch would vote to reverse Citizens United, or Shelby County v. Holder.[2]
• Sanders argued that changing the filibuster rule for Supreme Court Justices was inappropriate because former Majority Leader Harry Reid had declined to do that when Democrats held the Senate and that Reid understood that Supreme Court Justices were of a different magnitude than other nominees.[3]
• In a press release, Sanders stated that Gorsuch “refused to answer legitimate questions and brought the confirmation process to a new low in a thick fog of evasion.”[4]

On Brett Kavanaugh:     Voted no.[5]

• Sanders tweeted his opposition to Brett Kavanaugh on July 9, 2018, the same day as President Trump’s nomination of Kavanaugh. Sanders stated that Kavanaugh would “have a profoundly negative effect on workers’ rights, women’s rights and voting rights for decades to come.”  Sanders also stated that “We must do everything we can to stop this nomination.”[6]
• On September 6, 2018, Sanders again tweeted that “We must do everything we can to defeat Brett Kavanaugh’s Supreme Court nomination.”[7]

His opposition to President Trump’s judicial nominees:     Sanders voted to confirm 15 of the 71 judges nominated by President Trump, or around 21% of the nominees.[8]

• As of April 25, 2019, a total 71 Article III judges have received confirmation votes in the U.S. Senate since President Trump took office. All were confirmed.  This does not include 32 judges that were confirmed by voice vote.
• Sanders voted against 55 of the judges nominated by President Trump, or over 77% of the nominees.[9]
• Sanders missed one vote on a judge nominated by President Trump.[10]
• Sanders received an A- grade from Demand Justice for opposing President Trump’s judicial nominees.[11]

Position on Court Packing:

• Sanders has expressed skepticism about expanding the size of the Supreme Court, saying that it could lead to Republicans doing the same thing when they take power. Sanders stated “My worry is that the next time the Republicans are in power, they will do the same thing so I think that is not the ultimate solution.”[12]
• However, Sanders has endorsed the idea of rotating Supreme Court Justices off of the Court, and onto to lower appellate courts. As part of this proposed process, current appellate judges would become Supreme Court Justices for a period.  Sanders stated “What may make sense is, if not term limits, then rotating judges to the appeals court as well.  Letting them get out of the Supreme Court and bringing in new blood.”[13]

What kind of Supreme Court Justice would he appoint?:

• Sanders would have voted in favor of Merrick Garland, but did not think Garland was sufficiently left-wing. Sanders stated: “I’m 100 percent prepared to support Judge Garland.  I think he’s clearly very knowledgeable and can serve ably on the Supreme Court.  [But] I think there are some more progressive judges out there.”[14]
• Sanders would only nominate a Supreme Court Justice who would reverse Citizens United.[15] Sanders has stated that any Supreme Court nomination he made “would make overturning Citizens United one of their first decisions.”[16]
• Sanders was not confident that Garland was willing to vote to reverse Citizens United.
• [May 20th Update:] "Sen. Bernie Sanders (I-Vt.) joined other 2020 Democratic hopefuls on Sunday in pledging to only nominate Supreme Court justices that support the Roe v. Wade decision protecting abortion rights: “If you’re asking me would I ever appoint a Supreme Court justice who does not believe in defending Roe vs. Wade, who does not believe that a woman has the right to control her own body, I will never do that," Sanders said on NBC's Meet the Press."[17]

His views about the role of courts:

• Sanders has not articulated a judicial philosophy, but his speeches regarding judiciary issues indicate that he is results-driven on questions about judges.
• Sanders has mentioned opposing Gorsuch and Kavanaugh on the basis of the decisions that they would make, and the potential for them to vote in a way that he is opposed to. These include purportedly overturning Roe v. Wade, and abiding by the holdings in Citizen United and Shelby County v. Holder.

Last Updated: May 20, 2019

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Works Cited:

[1] RCV No. 111:  https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=1&vote=00111 (April 7, 2017).

[2] Sanders Floor Speech, April 4, 2017 at https://www.c-span.org/video/?c4665117/sen-bernie-sanders-judge-neil-gorsuch

[3] Id.

[4] https://www.sanders.senate.gov/newsroom/press-releases/sanders-opposes-gorsuch

[5] RCV No. 223: https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00223 (October 6, 2018).

[6] See Sanders Tweet, July 9, 2018, at https://twitter.com/berniesanders/status/ 1016507011943620613

[7] See Sanders Tweet, September 6, 2018, at https://twitter.com/berniesanders/status/ 1037829448761061379

[8] https://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_115_1.htm (115th Congress, First Session RCV Nos. 158, 188, 207, 280; https://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_115_2.htm (115th Congress, Second Session RCV Nos. 3, 5, 7, 9, 46, 49, 92, 93, 113, 115, 145.

[9] https://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_115_1.htm (115th Congress, First Session RCV Nos. 111, 137, 164, 182, 251, 255, 257, 259, 261, 281, 283, 313, 315, 317); https://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_115_2.htm (115th Congress, Second Session RCV Nos. 27, 38, 42, 47, 65, 82, 87, 89, 94, 95,117, 160, 174, 183, 185, 200, 203, 204, 223, 231, 232, 233, 234, 235, 236, 237, 238, 239, 258); https://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_116_1.htm (116th Congress, First Session RCV Nos. 29, 35, 37, 39, 42, 44, 51, 60, 66, 68, 73, 75).

[10] https://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_115_1.htm (115th Congress, First Session RCV No 253).

[11] Progressive Group Targets Senate Democrats for ‘Disappointing’ Responses to Trump’s Judicial Takeover, March 15, 2019, at  https://www.thedailybeast.com/progressive-group-demand-justice-targets-senate-democrats-for-disappointing-responses-to-trumps-judicial-takeover

[12] Bernie Sanders: Court packing isn't 'the ultimate solution', April 1, 2019, at https://www.washingtonexaminer.com/news/bernie-sanders-court-packing-isnt-the-ultimate-solution

[13] Bernie Sanders floats modified term limits for Supreme Court justices, April 2, 2019, at https://www.cnn.com/2019/04/01/politics/bernie-sanders-supreme-court/index.html

[14] Sanders: I wouldn't have picked Garland for Supreme Court, March 17, 2016, at https://www.politico.com/story/2016/03/bernie-sanders-convention-220954

[15] White House defends Garland from Sanders, April 15, 2016, at https://thehill.com/blogs/blog-briefing-room/276470-white-house-defends-garland-from-sanders (“I think that we need a Supreme Court justice who will make it crystal clear, and this nominee [Merrick Garland] has not yet done that, crystal clear that he or she will vote to overturn Citizens United and make sure that American democracy is not undermined.”).

[16] Sanders Tweet, January 21, 2016, at https://twitter.com/berniesanders/status/ 690337356411330560

[17] https://thehill.com/policy/healthcare/444448-sanders-pledges-to-only-nominate-scotus-justices-that-support-roe-v-wade