“The voters of this country should be heard,” Joe Biden said this weekend as he exhorted Senate Republicans to block a vote on President Trump’s Supreme Court nominee. That might be clever messaging — who doesn’t want voters to be heard? But there’s one problem: Unlike Mr. Trump and Senate Republicans, Mr. Biden has given so few details about his Supreme Court vision that voters are left guessing at what a vote for him means for the judiciary.
Start with appointments. Mr. Biden has resisted naming individuals he’d consider for the Supreme Court, saying it would subject them to undue criticism. Fair enough — Mr. Trump’s practice of making his short-list public is not required of other candidates. But the absence of specifics raises a fair suspicion that he doesn’t want voters to know that his nominees would be well left of center.
Mr. Biden’s chief stated requirement for a Supreme Court appointee is based on race and gender, not judicial philosophy or qualifications. His website says he would appoint the first African-American woman to the Supreme Court. That’s his prerogative, but it doesn’t help voters concerned about the impact of the Court on their lives; race and gender are not a proxy for views of the law.
Given those requirements, legal observers have speculated that two women top his list: 44-year-old Justice Leondra Kruger of the California Supreme Court and 50-year-old federal district court Judge Ketanji Brown Jackson, whom President Obama reportedly vetted for Justice Scalia’s vacancy. Both have significant records, but by avoiding names Mr. Biden can please his base with race and gender symbolism and avoid a debate on the law.
Perhaps more important to voters is whether Mr. Biden would undermine the Court’s independence. The Supreme Court remains one of the more trusted American institutions, but Democrats in Congress are threatening to pack it with liberal Justices if the Senate confirms Mr. Trump’s nominee. “Nothing is off the table,” Democratic leader Chuck Schumer said this weekend.
Legislation expanding the Supreme Court would need Mr. Biden’s signature, and he was asked Monday by a Wisconsin news station whether he was open to it. His answer: “It’s a legitimate question, but let me tell you why I’m not going to answer that question. Because it will shift the whole focus, that’s what (Trump) wants.” This is a calculated political dodge, and moderator Chris Wallace shouldn’t let Mr. Biden get away with it in next week’s first presidential debate. Would he veto court-packing legislation?
Mr. Biden wants to run on Donald Trump’s character and the coronavirus, full stop. He also wants to duck his party’s court-packing threats because they aren’t popular. Data for Progress, a progressive polling group, found only 40% of voters favor packing the Court if Republicans confirm Mr. Trump’s nominee.
But Mr. Biden has given little reason to think he’d resist his left flank in office. From his economic plan issued with the Bernie Sanders team to his increasingly extreme climate-change rhetoric, and new openness to eliminating the Senate’s legislative filibuster, Mr. Biden has shown little willingness—or ability—to shape the Democratic Party in his image. If the Justices rule the way Democrats don’t like, the pressure would be overwhelming for Mr. Biden to go along with court packing.
So let’s review the way both sides are honoring the voters who Democrats say should decide the next Court seat. In 2016 President Trump ran on the courts, becoming the first candidate to release a list of potential Justices. In 2018 voters increased the GOP’s Senate majority in part because they disliked the Democratic smearing of Brett Kavanaugh. Now Mr. Trump is putting forward a new nominee, for which he can be accountable on Nov. 3.
Mr. Biden, in the name of letting voters be “heard,” is demanding that Republicans surrender and not confirm a new Justice. But he has given voters no idea of who he would appoint to the Court, beyond an identity politics pledge. And he won’t tell voters if he’d resist his party’s court-packing scheme that could blow up its legitimacy.
The integrity of the Supreme Court and judicial independence are on the ballot, and Mr. Biden has a duty to clarify his position if he really wants to give voters a chance to be heard.
