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June 12, 2020

You be the political consultant: Should Joe Biden release a SCOTUS short-list?

I continue to think that then-candidate Donald Trump's decision in May 2016 to release a list of people he would consider as potential Supreme Court appointments was a quite clever and consequential campaign strategy.  Among other political benefits, the list honored and vindicated the decision by Senate Republicans to refuse of consider then-Prez Obama's nomination to the Court and reminded voters that the first critical act of whomever was to be elected in 2016 was to reshape the composition of SCOTUS. 

As Joe Biden looks to take over the role of nominating Supreme Court Justices, I know I would like to see him produce some kind of SCOTUS short-list.  As I have said before, as a court-watcher and a voter, it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  But this new Hill article, headlined "Democrats warn Biden against releasing SCOTUS list," details that Biden's political allies are not keen on him taking a page from the candidate Trump playbook:

Senate Democrats are warning former Vice President Joe Biden against releasing a list of potential Supreme Court picks. Then-candidate Trump, in 2016, released a list of names he said he would pick from to fill a Supreme Court vacancy, and Biden is facing calls from activists on both the right and left to do the same.  But several Democratic senators are warning Biden, who previously chaired the Judiciary Committee, against doing so.

Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat and a member of the panel, told The Hill that Biden should not emulate Trump, who broke political norms with his list. “I sincerely hope he does not do that,” Durbin said.  “We ought to go back to the regular order of things.  If and when vacancies occur he can look for the very best person at that moment.”...

Senate Minority Leader Charles Schumer (D-N.Y.) told reporters during a conference call that he also did not think Biden should release a list. “I have a lot of faith in Joe Biden. ...I’ve talked to him a little bit about this and I think he understands the gravity of the issue,” Schumer said.

The push for Biden to provide more details, and specific examples, of who he might pick for the Supreme Court comes as the federal judiciary is viewed as a key issue for the Democratic base in the wake of Republicans changing the rules for confirming Supreme Court nominees in 2017 and a controversial, vitriolic confirmation battle over Justice Brett Kavanaugh in 2018....

Biden has signaled he’s concerned about the courts’ direction, and that the GOP could seek to keep filling seats until the end of the year even if Trump loses reelection. During a NAACP event, Biden said he was “very concerned” that Senate Majority Leader Mitch McConnell (R-Ky.) was going to pressure older judges to retire....

His campaign didn’t respond to a request for comment on Thursday about calls for him to release a list of who he would pick from if he wins the White House and there is a Supreme Court vacancy.  Two Supreme Court Justices, Ruth Bader Ginsburg and Stephen Breyer, are in their 80s.  Two others, Clarence Thomas and Samuel Alito, are in their 70s.

Biden has committed to naming a black woman to the Supreme Court, which would mark a historic first. “I commit it that if I’m elected president and have an opportunity to appoint someone to the courts, I’ll appoint the first black woman to the courts. It’s required that they have representation, now it’s long overdue,” Biden said earlier this year during a debate against Sen. Bernie Sanders (I-Vt.).  Biden said during an interview with ABC’s “The View” that there were at least four women who he viewed as qualified to serve on the Supreme Court, but did not name names.

But some progressives say specifying a list of who he would pick from could be an olive branch to voters who might be wary of him as the party’s standard bearer.  “We think he should take the next step and say who those people are, so we have a more concrete sense of who he would nominate, sort of what the values are that he hopes those people might bring to the Supreme Court,” Christopher Kang, the chief counsel for Demand Justice, told The Hill in a recent interview.

Kang added it would be “reassuring” to get more details on who Biden is considering. “I think it could be an opportunity for him to really help consolidate the Democratic base by showing that the people he’s thinking about are people who have not only led exemplary legal careers but are inspiring for the work that they’ve done,” he said.

It’s not just progressives who want to see who Biden could be looking at for the Supreme Court.  Carrie Severino, the president of the conservative Judicial Crisis Network, wrote in an op-ed that Biden would rather “prefer to play hide the ball” than say who he will nominate.  “Independents and the right would be just as interested to know who Biden has in mind. If he becomes President Biden, they fear the Supreme Court may be radicalized, perhaps to deliver an America of the kind that Alexandria Ocasio-Cortez and the far left dream of,” she added, referring to the progressive New York House member.

Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on Donald Trump's initial SCOTUS short-list; these names were added later and that history highlights that Biden would not really be locking himself in to particular potential nominees with an initial list.  Most fundamentally, a short list would serve as a kind of statement of vision and values for the Supreme Court's future, and I think all voters benefit from getting a view of the types of people Biden would be inclined to seriously consider for the Court.  (And, of course, I am interested in seeing a list full of persons with backgrounds and legal careers suggesting they would be likely to help produce more and better criminal justice rulings from the Supreme Court.)

Because I am always interested in more transparency (and more blog material), I know I still would urge Biden to release a SCOTUS short-list ASAP.  But I would be eager to hear from any would-be (or actual) political consultants: do you think it would be politically wise for Joe Biden to release a SCOTUS short-list during his campaign?

Prior related post:

June 12, 2020 at 09:41 AM | Permalink


I think it is a bad political idea. The reason why is became Trump will make a great deal of noise about "radical liberal judges" which will motivate his base. Meanwhile, the average liberal will just snooze. So it can't help Biden, only hurt him.

I've made this point in the distant past. Fundamentally, only liberal lawyers consider the judiciary to be an engine of social change. Nobody else does, not even most liberal voters. People on the radical left don't want a different class of judge, they want--in some form or another--to get rid of the judiciary entirely. So for them liberal judges is more less rearranging the deck chairs on the Titanic. It just doesn't motivate votes on the left like it does on the right and I am skeptical it ever will.

Posted by: Daniel | Jun 13, 2020 1:47:41 PM

Interesting points, Daniel. Thanks

Posted by: Doug B | Jun 13, 2020 4:40:17 PM

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