Joe Biden is resisting calls from President Donald Trump and even some fellow Democrats to release his list of potential Supreme Court picks seven months after he pledged to name the first Black female justice.
Some on the left suggest that outlining potential picks would help Biden build enthusiasm in the final weeks of the campaign, particularly after he already selected California Sen. Kamala Harris as his running mate, making her the first Black woman on a major presidential ticket. Trump, meanwhile, is eager to comb through a list to find possible nominees who would bolster his false depiction of Biden as an extreme liberal.
Trump helped insert the Supreme Court squarely into presidential politics in 2016 by taking the unprecedented step of releasing a list of potential nominees before he was elected, a move that helped rally the conservatives who ultimately carried him to victory.
But some of Biden's allies say a list won't provide the same payoff for him and could hurt him by distracting voters from Trump's handling of the coronavirus and give the president fuel to suggest Biden’s choices are too far left.
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“Why play into Trump’s hands?” asked Karen Finney, a prominent Black Democratic strategist.
Delaware Sen. Chris Coons, a Biden protégé and confidant, pointed to the former vice president’s 36 years in the Senate and his brand as a liberal pragmatist as assurance enough for voters.
“He doesn’t need to issue some lists in order for Democrats to be comfortable that they know his values and his priorities,” Coons said, arguing that voters of all stripes know Biden would elevate “highly qualified, mainstream jurists.”
Still, the issue represents a familiar tightrope for Biden. He’s a center-left establishment figure aiming for a broad ideological coalition to defeat Trump in an era when the loudest voices come from the political poles. On issues from health care to the climate crisis, progressives hammer Biden as too incremental while conservatives cast him as too liberal. A Supreme Court nomination is certain to amplify those dynamics.
Trump offered a preview last week, challenging Biden to match his list of choices while sketching a caricature of “radical justices” he insisted would gut Second Amendment rights, remove “under God” from the Pledge of Allegiance and declare the death penalty unconstitutional. Iowa Sen. Chuck Grassley, a former Senate Judiciary chair, followed up Wednesday by urging Biden not to “hide” his intentions for the court.
On the left, the group Demand Justice wants to match the right’s intensity on judicial politics, while a second group, She Will Rise, is raising awareness about the possibility of a Black woman joining the high court.
Demand Justice has assembled a list of 17 Black women it says would make ideal justices. The list includes law professors, leading civil rights attorneys and jurists from lower federal courts and state supreme courts. But there are no names as prominent as the headliners on Trump's list: Texas Sen. Ted Cruz and Arkansas Sen. Tom Cotton.
Demand Justice has launched a $2 million ad campaign targeting voters in Arizona, Michigan, North Carolina, Pennsylvania and Wisconsin around the Supreme Court and Biden's promise of a Black female nominee. But executive director Brian Fallon argued that Biden could do more.
“Whatever good is achieved by making a general commitment like that would only be expanded and furthered if he put out some names of people he’s considering,” said Fallon, an adviser on Hillary Clinton’s 2016 presidential campaign.
Pew Research found in August that 66% of Biden supporters identified Supreme Court nominations as a “very important” issue, more than the 61% of Trump supporters who said the same. That’s a reversal from 2016, when Pew found Trump's supporters were 8 percentage points more likely than Clinton’s to consider the court a key issue.
There were key differences in 2016. Most important was a vacancy: Justice Antonin Scalia, a conservative icon, had died and Senate Majority Leader Mitch McConnell refused to consider President Barack Obama’s nominee, Merrick Garland, who would have tilted the court's majority to the left. There is no vacancy now, despite considerable attention on the health of Justice Ruth Bader Ginsburg, the liberal wing's 87-year-old leader.
Further, Trump in 2016 faced distrust among many conservatives, including white evangelicals, because of his support as a private citizen for Democratic politicians and public statements in favor of abortion rights and same-sex marriage. Trump turned that to his advantage by accepting help from the Federalist Society and other conservative legal advocates to compile a public list of would-be justices. He’s since nominated Justices Neil Gorsuch, who appeared on a preelection list in 2016, and Brett Kavanaugh, who appeared on a post-election list.
“Without that list, he wouldn’t have won,” Coons said.
There is some irony in Supreme Court politics being such a potentially prominent variable in Biden’s presidential hopes.
The conservative political movement on the judiciary blossomed after Biden, as Senate Judiciary chair, helped scuttle the nomination of conservative firebrand Robert Bork submitted by President Ronald Reagan in 1987. Biden angered some women four years later during the confirmation hearings of another conservative, Clarence Thomas, because of senators’ treatment of Anita Hill, who accused Thomas of sexual harassment. Biden voted against Thomas, but he was confirmed.
Even a 5-4 Supreme Court majority deciding the 2000 presidential election in favor of Republican George W. Bush over Democrat Al Gore did little to shift campaign dynamics concerning the court. All five justices in the majority were nominated by Republican presidents.
“Kitchen-table issues, health care and economics have always resonated more with our voters,” said Donna Brazile, a former Democratic Party chair and Gore’s campaign manager.
Fallon acknowledged, “much to my chagrin,” that it would be a first for Democrats to leverage the court as a key presidential issue more effectively than Republicans.
Finney said part of the challenge is the Democrats are mostly protecting existing precedent, while conservatives have spent decades trying to reclaim lost turf, from the Roe v. Wade decision legalizing abortion nationwide to decades of rulings on civil rights and the expansion of federal power. In short, it’s harder to get voters on the left to understand potential threats to rights they already take for granted.
“Republicans have been better at using fear as a motivator,” Finney said. A board member of NARAL, an abortion-rights group, Finney added: “I’ve had people say to me, ’Do we really need NARAL anymore? Aren’t our abortion rights safe?' No!”
Another example: A divided Supreme Court in 2013 gutted key provisions of the Voting Rights Act, but Democrats didn’t make that an issue in 2016 even with the vacancy from Scalia’s death.
If there’s a shift in 2020, Finney predicted it won’t come from Biden or his promise of a historic nomination. “Trump’s list is a motivating factor by itself,” she said. “There is no Democrat who wants to see Ted Cruz on the Supreme Court.”
Associated Press writer Alexandra Jaffe in Washington contributed to this report.