How Progressives Can Compete for Power

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Transcript 

This podcast was recorded on April 16, 2019.

MICHAEL WALDMAN: It should be clear by now: Courts matter a great deal. And the system of justice is inextricably bound up with the system of politics. Four out of the five conservative justices on the U.S. Supreme Court have been appointed by presidents who did not win the popular vote. And elections and choice of judges in the states is flooded with dark money, and suffused with partisanship.

Caroline Fredrickson is author of the book The Democracy Fix. She is the president of the American Constitution Society, and she has some ideas on how to fix our court system.

CAROLINE FREDRICKSON: We need to take our gloves off here. We need to stop feeling like we should stay out of these races because it's unpleasant that we elect judges and it's slimy, and so, we shouldn't do it. Because, you know what? They're doing it.

MICHAEL WALDMAN: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU Law. I’m Michael Waldman. This event was co-sponsored by the American Constitution Society.

In April 2019, Caroline Frederickson sat down with Eric Lesh, the Executive Director of the LGBT Bar Association and Foundation of Greater New York. They discussed the long conservative strategy to influence the direction of the courts, and they talked about how progressives could do the same thing.

Eric Lesh: So, let's dig right into your book. So the thesis is that if we want to implement our progressive policy goals, we need to concentrate all our efforts on capturing and locking in power. And progressives can do that by learning from the dastardly tactics and dangerous successes on the right. Is that right?

Caroline Fredrickson: Well, basically, yes. I mean, I think, one of the main arguments I make in the book is that the right has focused on power. And on the left, we tend to focus on policy. That means we get caught up in a nuanced debate about the intricacies of a variety of different proposals, but don't think about the instrumentalities of power. Now, there's a very important historical document, that some of you may be familiar with called the Powell Memo, where the soon-to-be Chief Justice Powell, before he joined the Supreme Court, he was very active with the Chamber of Commerce. And he wrote this memo that basically laid out, created a roadmap on the right, for how to take and keep power for a generation. And what he had identified — and this was in the early 70s, and he saw this massive threat to the free market system, that was brought by mostly by lawyers like yourselves. Ralph Nader and company and other lawyers who were fighting for consumer protections and environmental law, and Congress had passed environmental protections, and President Nixon had set up the EPA.

And all of a sudden, they thought that this was the end of capitalism. And so, he said, "What we need is we need ideas. So, we need to fund ideas, we need to fund the messaging of ideas; that is, we need to think about the marketing side, the media. And we need to think about the courts." And that is not just who the judges are — although that was a big part of it — but how do the judges understand the law? And whether, in fact, people can actually get in the courthouse door. And so, it was by identifying institutions that had long-term viability, as opposed to thinking about just about the next election cycle and the next set of policy issues that they might fight over. Thinking, "How do we build an ecosystem that our side — that is, the right — will dominate politics and policy for a long, long time?" So at that time then, they collectively … The Chamber of Commerce worked with a lot of the major right-wing funders, the philanthropy world, the Koch brothers — you're all familiar with them — the Mercers, et cetera.

And they came together and they identified, we need a Heritage Foundation. We needed some place where they'll generate ideas. But, ideas … they're not just ideas like the way we think of think tanks or universities, where they’re sort of more neutral, trying to come to the best answer. It was very, very focused on outcomes that were quite conservative. So, in a think tank with a very partisan edge, then, with a set of institutions to deal with the courts … You have the Federalist Society, you had some of the litigating groups that they set up, including the Chamber of Commerce litigation group, to press  litigation, to destroy unions, to take down regulations, and so forth. And then, they also set up institutions on the media side — so media monitoring, and also their own media operations. The birth of Fox News, but there were others that all came into play to destroy the idea that the media is a neutral body. And then, of course, there was the electoral side.

So it was this ecosystem, but they worked together and they created a map. "Here's this, here's the think tanks, here's the dissemination platform, and here's the audience. And we're creating the audience, too; that is, the judges and legislators."

Eric Lesh: So, you're the president of ACS. I used to work at Lambda Legal as the Fair Courts Project Director for six years. Why is fixing our democracy so urgent? Why is it the key to the progressive future?

Caroline Fredrickson: We are at a particular moment where our democracy has never been so threatened, where we are seeing dark clouds of autocracy not just on the horizon, but pretty much approaching. I mean, a variety of things that have happened in the past couple of years that have been very frightening. Our democracy is not as strong as we thought. There are a lot of elements of the infrastructure that we took for granted that are actually not fixed. They're optional, and norms as opposed to laws. And we've seen how that's played out with President Trump — and I will name him, because you all know in the back of your mind, that's who I'm talking about.

But to say, why are we having a big debate about whether the President should produce his tax returns? Why are we having a big debate over whether a report written for the Department of Justice dealing with interference by a foreign … hostile foreign power in our elections, should not be provided to Congress to review, in order to prevent it from happening again? That, and so many other things — considering the personal financial benefits that members of the family might be getting from a variety of policy decisions. All of those things we're debating because those things we thought were not possible, we did not actually establish mechanisms to prevent them.

Eric Lesh: So let's talk a little bit about the court strategy. You describe how, through Reagan, [inaudible], the Chamber, the Federalist Society and others, they funneled money and resources into a sort of court strategy that revolved around coordinated strategic litigation shops, civil justice reform or gutting civil justice, and packing courts with like-minded jurists. What lessons can progressives learn about the way that the right approached controlling the courts, rewriting the rules, so that we can rebalance the scales?

Caroline Fredrickson: That's really the heart of what ACS does. If you cannot get into the courtroom and you can't press your case, it doesn't really matter how important your goals are or how just your cause is, because you have just lost. So, I think that one of the fundamental and very, very subtle things that the right has achieved is they have really, really gone after access to the courts. And we think of, again, we think about that as, "Oh, there's that Wal-Mart case that made class actions harder." And, "Oh, there was the case dealing with pleading standards that made it a little harder to get into the courtroom." And then, there's a case about, "Oh, how the Federal Arbitration Act somehow trumps all the other statutes that made it possible for people to litigate their cases. And so, everybody's pushed into arbitration.”

And you don't realize that that's actually a systemic approach that has been … All those pieces have been laid out on the agenda of how do we make sure that the courts are not a place for really important statutory and constitutional rights to be addressed?

Eric Lesh: So, one of the major examples that you give in your book that's in need of unrigging is how the right has been so successful in their efforts to limit access to the ballot and to pick their voters. How exactly did the right use the strategies that were outlined in the Powell Memo — to advance litigation, messaging, take advantage of census year elections, in order to gut the Voting Rights Act, pass restrictive laws, redraw districts, and somehow, manage to get the whole country talking about voter fraud?

Caroline Fredrickson: That's a great question. So, I hope we can go back to the courts because there's a lot more to talk about there in terms of the selection of judges and the resources they have put into all of those issues. And the fact that progressives, the left, has paid so much less attention and sort of been coddled by the idea that the Warren Court hasn't gone away. And, in fact, it's been a long time since we've had a progressive Supreme Court of any kind. I don't remember a Supreme Court that was anything but hostile to basic rights. But in terms of the voter suppression, I mean, there's two strands, right? One is making it harder for voters who will vote for the other side, and particularly minority voters — keep them from voting. And the other strand is to draw districts to favor your own candidates as much as possible.

They're very aligned, but they have different legal processes, but they've come up with them as joint efforts. And so, on the one hand, since the adoption of the Voting Rights Act, there’s been a rear guard effort on the right to fight against its enforcement. And, the man who is now considered the center of the Supreme Court — and I'd say that's only because the Supreme Court has gone so far to the right — the Chief Justice has long had the Voting Rights Act as his target, since he was a very young lawyer working in the Justice Department. Since he clerked for Chief Justice Rehnquist, he has believed that any attempt to remedy racial discrimination and voting is unconstitutional and he has been firmly against it, has been on record for a long time. That was his agenda. He didn't get it done when he was in the Justice Department, when he tried to persuade higher ups not to support the reauthorization of the Voting Rights Act in the 80s.

And he wasn't ultimately successful. But what he got done as the Chief Justice of the Supreme Court was to rip the heart out of the Voting Rights Act in Shelby County, which is just a terrible decision — one of the worst decisions of the Supreme Court in, certainly, my lifetime. So, there was that whole effort to ... What Shelby County then did was it green-lighted all of these voter suppression efforts that had been held in abeyance by the Voting Rights Act, that had been waiting in the wings. And so immediately, North Carolina immediately repassed this omnibus voter suppression bill that had not been able to get through before because the Justice Department had stood in its way. Texas immediately passed the same with a whole variety of different tactics and including photo IDs and shortening early voting and making it harder to register. And then, we have the voter purges in Ohio, and on and on.

On the gerrymandering side, one of the very interesting and very unfortunate historical examples that I look at is Karl Rove in 2009 basically announced that he was going to pursue something called REDMAP. In advance of the upcoming census, they wanted to win over or … In advance of the upcoming redistricting post-census, they wanted to win over just enough seats so that they could control state houses and change the composition of their congressional delegations. And so very strategically, they figured out I think there was 107 seats that they needed to take in specific states, where they looked at a Republican governor, a closely divided state legislature, and a place where the state legislature controlled redistricting. And he announced it in the pages of The Wall Street Journal: "Here I come, Karl Rove. I'm going to be taking away people's right to choose their own elected officials, and their elected officials are now going to choose their voters."

And so with that, and they put it up on a website — it was the Republican State Leadership Committee.* They put it all up; they showed where they were investing. And the Democrats did nothing. Did nothing. Even with Karl Rove waving a flag, "Here I am." It was a relatively small amount of money. I think it was around 30 million dollars. And they flipped all those state houses. And you see the ramifications in the next election were so profound. And it continues, right? It's until the next census. And then what they did is they redrew all those districts. And, it's the state house, and it's the congressional district. So, it's not, we often think just about Congress, but it's the state houses as well. And that means that when they do go ahead and pass all those voter suppression laws, and et cetera, et cetera, and they change the jurisdiction of the courts or they gerrymander them as well — the voters could be 60 percent against that, and they have no say.

Eric Lesh: You lay out a six-point plan for — in your memo to progressive America — about what we need to do. And one of them focuses on the way that the left funds … You know, I lead a nonprofit, you lead a nonprofit. This takes strategic funding in order to be able to capture power in the way you describe the right doing. Why has the left's diffuse and scattered method been so ineffective?

Caroline Fredrickson: Yeah. Well, it's funny. I mean, it sort of in some ways goes with the territory, as … I interviewed Gara LaMarche who runs something called the Democracy Alliance, which is a group of progressive donors — some foundations, but also very wealthy people — who have thought to create a counter to the Powell Memos, an effort to have a set of institutions that last for a long time to build out a progressive future. But as Gara told me, he said, "The problem on the left is that we're not command and control. We're not hierarchical in the same way, top down." Actually, there's a wonderful report that was put out by the National Committee for Responsive Philanthropy — which is a mouthful — but they looked at the right wing funders, and they really do have a command and control. They have their committees, they sit, and they agree that the Kochs and the Mercers and the Bradleys and the others … They agree, "These are the institutions we're going to fund, and we're going to fund them for a long time."

The Olin Foundation got in at the beginning of the Federalist Society. And Gara also told me this story. He said, he asked the guy who was running the Olin Foundation, "How do you know if your grantees are doing well?" And he's like, "Well, I look in the newspaper and I see things are going okay." So instead of like every three months, write a report and show how you've changed the world — that we on the left often have to do — it's this long term vision and the understanding that change is incremental. Especially in issues like the courts, the process of building a pipeline to get young talented progressives to think about becoming judges. All of you law students, young, talented progressive — think about becoming judges. But the process of cultivating and supporting and helping them get the first job and clerkship and the next job, and connecting them with influencers and doing that, we’re talking, for the law students who are in here, it could be, 15, 20 years, right? Before ... And so, that kind of thinking is hard on the left.

And I'm hoping that more of them will grapple with that, some of the big foundations and the wealthy folks. And I'd have to say, some of the bigger foundations have been really good at at least a multi-year grant, maybe two years. But, I mean, the Olin Foundation funded the Federalist Society. Basically, "Here is 20 years worth of funding, and come back to us and tell us what you've done." Now obviously, that's not realistic for a lot of funders, but there is that, they have a horizon that's much further down the road. And I think — I don't know how many of you work at nonprofits or have this understanding, or work in progressive politics — you know, change isn’t tomorrow. Usually, you got to be working tomorrow, and the next day and the next day, but your change could be a couple years out. And so we need to figure out and put pressure on some of these funders to understand that we cannot be living hand-to-mouth, and assume that we're supposed to make change tomorrow.

Eric Lesh: Judicial elections are a reality, and for some reason, the progressive left is not enthused about it, and we don't get active. Why doesn't the left care about courts?

Caroline Fredrickson: Yes, the big question. Well, let me just elaborate on that story a little bit. So, Scott Walker, we all remember him. When Scott Walker was elected the last time, he violated the law — at least, it was alleged — of coordination with an outside funder. It was supposed to be an independent expenditure campaign. Wisconsin had very strong laws prohibiting ... They had strong campaign finance laws, their old populist, progressive populist tradition. And those same outside funders also funded Supreme Court justices in that election. So when the case went to the Supreme Court of Wisconsin, the challengers asked — the prosecutors asked — those justices to recuse themselves, because they had also received funding from the same exact outside sources. And, you know what they did? They refused to recuse themselves. So, they heard that case, and they decided that Scott Walker's election was just fine.

And so, we think that, I think, often on the left … And again, it's distasteful. I agree, and I share that distasteful attitude towards judicial elections. But the fact of the matter is that the lack of engagement there that had elected these Supreme Court Justices meant that Scott Walker got re-elected ... I actually, think that was his recall election. But it was devastating. It was devastating to the laws of Wisconsin that had mandated transparency and had these strong, not just disclosure rules, but there was not allowed to be coordination. It's all out the window because the judges have been bought and sold. And so I think one of the things that, I think … With the left, again, I think, we tend to be very idealistic. It's a wonderful thing about us.

We're focused on a whole variety of issues. But the issues will never be successful that we care about if we don't think about that infrastructure, right? Because where do all these things go to die, but the courts? And so, I think it's just we have to connect — make that connection to people. And I hope that we won't see with LGBTQ rights in Wisconsin, that this new Supreme Court Justice is going to make things even worse on choice, et cetera. That's a bad way to make the connection. I'd rather not have it through terrible cases, but often, that's what's happening. And so, I think we need to take our gloves off here. We need to stop feeling like we should stay out of these races because it's unpleasant that we elect judges and it's slimy, and so we shouldn't do it. Because you know what? They're doing it. And Karl Rove — he was the political operative, the big guru of the Republican Party, certainly for George W. Bush, but before that — but he cut his teeth on state court elections. That's where he started because he knew that they were low investment and big outcome, right? And corporate America got that, because states are where they passed tort laws, and worker protection laws, and they want to raise the minimum wage or do those things. And they're still investing in those races, and we're still not.

Eric Lesh: So, I want to talk about the Federalist Society. FedSoc has been around since 1982, ACS since 2001, right after Bush v. Gore. What is the Federalist Society's role in this kind of power structure that you've talked about under the Powell Memo?

And how is ACS replicating that or doing it differently and better?

Caroline Fredrickson: Justice Powell, before he was Justice Powell, was a lawyer working for the Chamber of Commerce. He understood that of all the things he was identifying in terms of important infrastructure that the right wanted to control, the courts were numero uno for him. That was the place to start. And that was the judges, the ideas — meaning, constitutional interpretation, statutory interpretation — and the people to litigate. So, the Federalist Society is involved in all of that, but particularly known of late for their role in providing Donald Trump with his list of judges. I'd say this is one place where I think we really, frankly, try to emulate them. We are building a pipeline. We do want law students to be supported. We are building a better structure to help with clerkships, to help lawyers become judges, both at the state and federal court level. But we've got a lot of catching up to do.

There is a very concrete connection on the right between financial and personal self-interest, and the act that they are engaged in. That is, the more judges that believe that the administrative state should be torn down, the more likely that my company is to be able to pollute as much as we want without paying costs, or not to put in safety things for workers, which costs money. So there is something on the left that makes it that it's about our idealism. But if we care about choice or racial justice or criminal justice reform or the environment, we have to understand that the courts are such a vital piece of that. And I think it's just that we have one more step, right? Because it's about our idealism typically, and it's not about our stock investment or our bank account.

Eric Lesh: The right has for a long time said, "I am pro-conservative, pro-gun, anti-choice" — like, will say things openly so you know exactly what you're voting for. And Democrats shy away from that. I want to talk about … so, you described the Federalist Society as being very active in this space, but without being overtly political. And one of the things that they have is the Judicial Crisis Network, which is this dark moneyed, big moneyed organization that spends tons of money on judicial elections, on Supreme Court confirmations. When McConnell announced that he was going to block any judge that Obama put forward onto the Supreme Court, I was like, "Well, public pressure will win the day." We didn't see all of that money that flooded in from the Judicial Crisis Network. Talk about that —  their impact and their role. And, do we need one on the left?

Caroline Fredrickson: The Judicial Crisis Network — that is a very interesting group. There was a dinner that included a couple of the major donors on the right that are in this constellation of big donor, big ... Family Foundation. Justice Scalia, Leonard Leo — who’s the grand poobah of the Federalist Society — and the first person who ran the Judicial Crisis Network, which is before Carrie Severino, who's the woman who runs it. Now, they all had dinner together to sort of celebrate the founding of the Judicial Crisis Network, which was originally called the Judicial Confirmation Network because it was founded when George W. Bush was president.

And I just thought, Justice Scalia was there, too. Okay. And Leonard Leo was very involved in the Judicial Crisis Network — the way it runs now — in addition to being a participant in its founding. So, what they do is they're an interesting, perfect example of what we would call a dark money group, because you don't know any of their funders really, except for the Donors Trust, which is a big black box on the right, which is a pass through. So, nobody really knows who their donors are, except for there's something called the Wellspring Group, or the Wellspring, I mean … Wellspring Group, which is also run by Leonard Leo. Now, there's only one person who works for the Judicial Crisis Network — that's Carrie Severino — and their budget is about $25 million. They don't have an office. They have a post office box, which I think is in the same building as the Federalist Society. So, you kind of wonder about this. What they are is they just run attack ads. So, what they did after Justice Scalia died, they immediately started putting pressure on Republicans, really, to stick with the plan.

McConnell announced immediately on finding out that Scalia had died, as did Hugh Hewitt and a variety of other right wing commentators, "No hearings, no votes. No hearings, no votes. We are not going to let anybody that Obama nominates, we don't care who it is, don't bother sending us a name, it doesn't matter. We are not going to allow a hearing or a vote." And they stuck to it, but they had a lot of money behind that. So, there was one Republican Senator, Mark Kirk, who did split from his party on that. And he — you may not remember him — but he used to be a senator from Illinois. He is no longer a senator from Illinois, which doesn't break my heart at all. However, part of that had to do with not being fully opposed to President Obama having the right, ability to appoint a justice to the Supreme Court. The other one was Senator Moran from Kansas who briefly suggested that, maybe, maybe at least they should give Garland a hearing.

Judicial Crisis Network didn't like that very much, and immediately got into his primary, started running ads, and that lasted about a day and a half. And Senator Moran got himself turned around and came back into the fold. And they really … That was a credibly united Republican Party there.

Eric Lesh: So, do we need one on the left?

Caroline Fredrickson: Well, so there’s been a group that's founded called Demand Justice, which is trying to get there. It's still a very young group. They don't have $25 million, so far as I know. But the idea is, in part, to focus on Democrats. I think … I have to say, I worked for quite a number of years on the Hill, and I've been around the world of judicial nominations for a long time. And it is incredibly frustrating that the Democratic senators don't find the judicial nominations process nearly as interesting or important as the Republican senators. And so I am very sympathetic to putting some heat on them, because if they don't take it more seriously, then we're not going to get a Justice Garland or anybody else. It’s going to continue to be Justice Gorsuch and Justice — dare I say — Kavanaughs.

Eric Lesh: And I want to talk to you about that experience with federal judicial nominations. So, definitely pay some attention to Demand Justice — we demand justice there — giving scorecards to Democrats who are not doing enough on judicial nominations. But what we're dealing with now is McConnell and Grassley who have gotten rid of — talking about norms — every norm, to ram through as many judges as they possibly can. And the Democrats are like, "We don't have any power. You're taking away the blue slips, you're stacking court hearings with multiple circuit court nominees. Stop." And they won't. So, tell us a little bit about how bad are things getting on the federal courts — lower federal courts — that most people aren't paying any attention to? And, what are we going to do if the Democrats ever retake the Senate to make sure that we do the same thing, that we don't go back to adopting these norms that are broken?

Caroline Fredrickson: Well, I don't think there's any going back. At least, I hope not. I would think it would be a real mistake. Here's why: I mean, these are lifetime appointments. And we've already had Democratic presidents who, for better or worse, have been typically inclined to nominate moderates to the bench. Most Americans probably think that's basically good, except that on the right, they're nominating Kavanaughs. They are nominating very far right lawyers to become judges. That means that the Democratic nominees are over here, and the Republican nominees are over here. That means the courts are sliding inevitably to the right. Even if Democrats had an equal number of nominations confirmed, the courts are still moving to the right. And so, I think those norms have to be abandoned, because the consequences are so great.

I mean, we're already seeing, the potential for — well, certainly worried about the gerrymandering cases not coming out the right way. There are all sorts of other places where democracy can be eroded by the court as it continues to destroy … I mean, there are other challenges to the Voting Rights Act, there are challenges to affirmative action, there's challenges to quite a number of … in very significant areas, including deference to administrative rulemaking, which is the backbone of our environmental protections and worker protections. So, all of this is on the line. We really need to build up that pressure on Democrats to do better, I mean, because this cannot go on, that is so out of step with where the rest of America is.

I think when you have a court where people have lifetime appointments, and they're appointed so that they can stay on the court for 30 years or more, and they are not reflective of either the diversity of the country or the viewpoints of the country and the understandings that the vast majority of American people have about how we should understand our Constitution, that is a recipe for a great danger to our democracy. And I really worry about that. And what do we do when the Supreme Court says that Section II of the Voting Rights Act is unconstitutional? Because that is certainly on the agenda. What do we do when the Supreme Court says, "You know what? We don't actually think that states — through ballot initiatives, citizens can decide to have a nonpartisan redistricting process." Because that's also possibly something coming. What do we say when they say that the public accommodations laws of the Civil Rights Act are unenforceable because people have religious beliefs that say they shouldn't have to serve people that conflicts with our religion?

Where do we go when we start having decisions like that? That is what really worries me and why I think we need to really put pressure on Democratic politicians to take this seriously.

Eric Lesh: I assume you support some changes to the way that Supreme Court is structured?

Caroline Fredrickson: I often point out to people who aren't lawyers that the Supreme Court is not defined as “nine person body” in the Constitution, and it has changed size many times. I tend to think we have to really … have to wrestle with whether or not blocking Garland meant that that seat really should have ... I mean, it should have been President Obama's selection. Does that mean that Democrats, if they have the chance, should add — should expand — the court to take into account that what people call “the stolen seat” needs to be compensated for? I mean, these decisions, even when it's not a constitutional decision — that is, a decision that Congress could theoretically react to, override, if they felt compelled — you know how hard that is? I mean, the Lilly Ledbetter decision is one of the only ones that we can probably think of in a long time when Congress has actually been able to react to a Supreme Court decision that was so flagrantly wrong, and reverse it. You can't get your hopes up on that.

We need a pipeline for the future. We need to invest in what happens in 15 and 20 years from now. That means finding and cultivating and nurturing leaders. We cannot be so short sighted. And that's definitely been … that's what we are trying to do. But it's also not just identifying good progressives to be on the courts, but also making sure that we have the ideas to share with them. And that means fighting back on these efforts to close the courthouse doors. We need to go after the court — the interpretation of the Federal Arbitration Act, which is just an outrage. We need to expand access to class actions. And we need to make sure that there are attorneys’ fees for people bringing civil rights cases, and so forth.

Because, otherwise, what does Title VII mean? If a group of low-wage workers gets robbed a dollar out of their wages for every hour, that doesn't add up to a lot of money to some global corporation, but it sure adds up to a lot of money for somebody who works for minimum wage. But what lawyer can bring that case if you can't bring a class action?

If I want equality, I want to ensure that people from all backgrounds have access to good jobs, have access to good education. I want democracy; I want to make sure everybody can vote who's eligible. I want to make sure that it's easy to vote. I want to make sure that our districts are drawn proportionately, fairly. They don't lock in incumbents forever. So, it's sort of … I can see a group of funders — and I won't name anybody — but if they sat down and said, "We've got X billions of dollars. How do we create a map where we say there's the legal sphere, there's the election sphere, election administration? And I'm not talking about putting together a platform. I'm talking about, how do we make sure that we have good secretaries of state? How do we make sure that ballots are created that are easy to understand? How do we make sure that we understand what's the best election reform, that it makes it easiest for people to vote? Is it early voting? Is it same day registration? Is it automatic voter registration?"

And then you have the policy ideas. But that is — those spheres, your think tanks, your legal mechanism, your electoral mechanism — let's just figure out what are the most important institutions we can build, and let's fund them, let's join together, and let's do it. And we could do it.

And we now have to recognize that the left needs to care about power. We need to care about power. So that means we need to have a strategy. Now I think strategy is really important — that gets us there. And then once we're there, we need to think about — and this is where I'm both a progressive, but I'm also a “small-d democrat” — we need to follow those policies that are actually going to be most consistent with our values In terms of access to the government, of fairness. We're not going to be about voter suppression or about gerrymandering because those are both ... And then in the long run, it's both better for Democrats, capital-D, and democrats, small-d, to have good government policies, because, that's what the voters on the left actually care about. They want to vote their values.

But I think, hopefully, we can pressure progressive politicians to listen. And then, we can start to fix our democracy.

Eric Lesh: If you had to appoint one Supreme Court Justice, do you have a thought leader that you would appoint? Who would be your go-to justice that would be the intellectual powerhouse of the progressive movement?

Caroline Fredrickson: There are too many good thinkers that I wouldn't want to. I can think of who I'd most … which seat I'd most like to be vacant. Four of the five conservative justices have been appointed by presidents who did not win the popular vote. So, we talked about … We didn't really talk about the Electoral College, but that is another reform that needs to happen.

Before we end, I just want to say thank you to you, Eric, for being such ... and Eric was so kind as to be willing to be interviewed for the book, and then to be willing to be here and interview me. And also, the Brennan Center, which is a wonderful partner of ACS, and I'm really grateful to have this opportunity to be here. 

MICHAEL WALDMAN: Thank you for listening to Brennan Center LIVE with Caroline Fredrickson, president of the American Constitution Society and author of the book The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections, and Eric Lesh, the Executive Director of the LGBT Bar Association and Foundation of Greater New York.

Please check out our events, follow us on social media, and sign up for our newsletter at BRENNANCENTER DOT ORG. Brennan Center LIVE is available on our website, or wherever you get your podcasts.

*Fredrickson says “Republican State Legislative Committee” in the audio version, but it should be “Republican State Leadership Committee.”