Joe Biden under pressure to unveil list of potential court picks

ATLANTA — 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.

“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.

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