CBS News is reporting that liberal groups are calling on Joe Biden to release a list of potential Supreme Court nominees and “copy the playbook” of Donald Trump’s 2016 campaign.
At first glance, this seems like a useful idea. Trump’s SCOTUS list was a highly effective campaign maneuver, shoring up wobbly support from originalists and social conservatives. Before the election, I was highly skeptical that Trump would adhere to his promises on judges, but he has, and for many of us, these picks are the most important legacy of his first term.
But what does Biden gain from assembling such a list? Probably not much. In fact, it could hurt him.
While it’s true that the liberal base is animated by resisting conservative justices, contemporary Democrats have never been exceptionally troubled by the philosophical disposition of their judges, mostly because their presidents never make mistakes.
Of course, it’s easy to make the right call when you’re picking from a group whose only unifying ideology of jurisprudence is malleably partisan. There is no Federalist Society laying down intellectually consistent cases on the left, because there can’t be any consistency. There is virtually no space between the Left’s conception of Constitution and the Left’s constantly evolving views and policy goals. And those goals increasingly lay outside the limits of traditional constitutional governance. Liberal judges exist to justify, literally, those policy goals, and in the vast majority of cases, they do.
As former president Barack Obama once explained to an audience at Planned Parenthood — an organization, not so incidentally, built on a concocted right invented by a liberal Supreme Court — at the heart of the progressive conception of justice isn’t blindness, but “empathy” (though definitely not for the unborn).
This is partly why there’s not a single instance in recent history in which liberals have been dissatisfied by the Supreme Court pick of their party. Most Democratic nominees are easily confirmed, and most rule largely as expected.
Conservatives, on the other hand, have to deal with a long history of justices “evolving,” as the media might put it, and disappointing them. William Brennan, Harry Blackmun, David Souter, John Paul Stevens, and to a lesser extent, Sandra Day O’Connor and Anthony Kennedy come to mind. (Ramesh Ponnuru made this point earlier in the year.)
Many conservatives are angered (I think somewhat unfairly) by the rulings of John Roberts. But it’s also worth remembering that Samuel Alito is only on the bench because the GOP revolted against George W. Bush’s ill-advised nomination of Harriet Miers.
A list is a helpful way to avoid this turmoil, not only by mollifying the concerns of conservative voters before the election, but by nudging GOP administrations to live up to explicit promises. Republican voters might not blame a president for failing to foresee the leftward ideological journey of a onetime conservative jurist, but they will surely blame the president if he ignores the names on a list that he himself offered as a campaign promise. Moving forward, I assume every GOP presidential candidate will be sharing a list of SCOTUS picks.
A Biden list, as Carrie Severino points out, will likely remind some conservatives that Biden was one of the architects of “modern day smear campaign against originalist SCOTUS nominees,” creating the template for the Brett Kavanaugh hearings. And, as we know, the Kavanaugh debacle, for many conservatives, was a galvanizing moment in which they were reminded that scorched-earth partisanship and media corruption are not weapons reserved for use only against Trump.
More than that, Biden’s list will be predicated on a delicate balance of gender, race, and sexual orientation — which holds the possibility of needlessly upsetting one of the many factions within his party. A list populated by milquetoast Merrick Garlands — a “moderate” who would have voted with the left-wing block 90 percent of the time — would irk progressives. Biden has already pledged to name a black woman to the Supreme Court. But what about a gay justice? What about a Latino justice? What about a trans justice? Etc.
Most conservatives would be happy with Martian justices as long as they protected religious liberty, the Second Amendment, and so on. Biden’s list would offer Republicans an opportunity to highlight, with great specificity, the kind of radicals the Democrats would appoint. Democrats would once again accuse those critics of homophobia, misogyny, and racism. But that’s nothing new. On balance, the topic of constitutional philosophy has far more traction on the right than the left.
Any Biden list, in fact, is likely to scare conservatives more than placate liberals. Which is perhaps why it’s conservatives, rather than liberals, who should be clamoring to demand Biden release one in the name of transparency.