Opinion: Trump released another gimmicky Supreme Court ‘list’; Biden shouldn’t follow suit
Amid an uproar over interviews with Bob Woodward in which President Trump admitted to downplaying the coronavirus, on Wednesday the president sought (unsuccessfully) to shift public attention to something else: the future of the Supreme Court, which he said was threatened by a possible victory by Joe Biden.
Trump released yet another list of potential Supreme Court appointees — including prominent legal conservatives such as former Solicitor General Paul Clement along with three Republican U.S. senators: Ted Cruz, Tom Cotton and Josh Hawley. (Hawley promptly said that he wasn’t interested.)
Trump dared Biden to come up with his own list, so that Americans could “properly make a decision on how they will vote.”
Biden shouldn’t take the bait. He already has committed to naming a black woman to the high court and said in June that he wouldn’t release the names of candidates in that category “until we go further down the line in vetting them” — but it wasn’t clear whether he would disclose such names before the election.
Biden is under no obligation to dangle a list of names before the voters and subject the lawyers and judges on the list to partisan attacks.
And suppose Biden did commit himself to naming justices from a list. He’d be hamstringing himself if a vacancy occurred in his administration and a new candidate emerged — say, Barack Obama, who in the past has said that a seat on the court would be “a little bit too monastic for me.” (Biden has said that he would appoint Obama to the court “if he’d take it.”)
It made sense for Trump, a political novice, to compile a list because conservatives in the Republican Party feared he wasn’t committed to nominating conservative justices, and Americans of all persuasions had reason to fear that he might appoint unqualified cronies.
(Democrats complained that Trump had “outsourced” Supreme Court appointments to the Federalist Society and the Heritage Foundation. But, as I wrote here, it was better that Trump committed to drawing from a list of qualified judges rather than appointing some golf buddy with a law degree.)
In unveiling his latest list, Trump suggested that a victory by Biden might lead to an infection of the Supreme Court by the “radical left movement.” He also said that whoever is elected in November might get to name as many as four new justices.
That’s unlikely, unless Justice Clarence Thomas decided to retire at a relatively young age. (He is 72.) A President Biden likely would have the opportunity to replace Justices Ruth Bader Ginsburg and Stephen G. Breyer, Democratic appointees who are in their 80s. But that wouldn’t alter the court’s ideological balance; it would be more of a holding action.
Trump can plausibly argue that if he is reelected, he would be able to shift the court to the right, including on abortion. But that may not be an appealing proposition for the female and suburban voters he needs to court.
The future of the Supreme Court is a legitimate issue in the presidential campaign. The Democratic platform, for example, promises that a Democratic administration “will appoint U.S. Supreme Court justices and federal judges who look like America, are committed to the rule of law, will uphold individual civil rights and civil liberties as essential components of a free and democratic society, and will respect and enforce foundational precedents, including Brown v. Board of Education and Roe v. Wade.”
Biden’s campaign declined comment on whether the candidate will release a list of potential Supreme Court nominees before the election. He shouldn’t do so. He can campaign on the promise in the platform without matching Trump list for list.
11:27 a.m. Sept. 10, 2020: This post has been updated to include the fact that the Biden campaign has declined to comment on whether the candidate will release a list of potential Supreme Court nominees during the campaign.
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