The Corner

Elections

Why Biden Won’t Release a List of Potential Supreme Court Nominees

In light of the recent death of Supreme Court justice Ruth Bader Ginsburg, and as Republicans gear up for a confirmation battle, it’s become even more conspicuous that Joe Biden has thus far refused to release a list of potential Supreme Court nominees he’d consider as president.

Donald Trump’s choice to do so during the 2016 presidential campaign was a revolutionary campaign tactic, and there’s a great case to be made that it was an essential part of how he managed to win the election. For a candidate who had no political track record and a history of less than perfectly conservative comments, making some formal commitment to filling the Supreme Court with justices acceptable to conservatives made a huge difference, especially in light of the vacancy that had been left by Justice Scalia’s death and the GOP Senate’s choice to keep that seat open until after the 2016 election.

This time around, Trump has again released a list of potential nominees, more important now that an actual vacancy has presented itself. And still, the Biden camp remains mute. It isn’t necessary, of course, for Biden to offer to list the people from whom he might select a nominee, but Trump’s willingness to do so makes Biden look cagey by comparison.

But Biden’s reasons for remaining silent on the matter — even in light of the open seat that Democrats are demanding Republicans keep open until after a new president is sworn in — are fairly obvious.

If he were to release a list of center-Left moderate judicial possibilities, he would risk incensing the Democratic base, which is made up of progressives who see the Court as a super-legislature that must be filled with enough justices (perhaps more than nine, if needed) to ram every progressive priority down the throats of the entire country should Congress or the president fail to do so.

On the other hand, if he were to release a list of potential nominees left-wing and radical enough to pacify these power-hungry progressives whose support he must have, Biden would certainly risk alienating moderates and swing-state voters, the kinds of people he must win back from Trump in order to pick off enough of the swing states Trump won in 2016.

If you’re Biden, neither of those options is politically attractive. Though it is risky in a different sense, remaining silent on the subject seems safer.

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