Democrats are urging Joe Biden to stay out of the fray when it comes to the debate over adding Supreme Court justices or ending the filibuster amid roiling anger on the left over Senate Republicans moving forward to replace the late Justice Ruth Bader Ginsburg.
Democratic Party leaders, including institutional figures such as Senate Minority Leader Charles Schumer (D-N.Y.), have said nothing will be off the table when it comes to their response to the GOP’s efforts to confirm a third Supreme Court justice under President Trump.
On the left, calls to pack the Supreme Court have quickly picked up steam, helping Democrats to raise tens of millions of dollars since Ginsburg died on Friday. Former President Obama had previously called for ending the Senate filibuster at the late Rep. John Lewis’s (D-Ga.) funeral, calling it a “relic” of the Jim Crow era.
Biden has opposed both moves in the past. The former vice president has not weighed in on either issue since Ginsburg died, instead appealing to Republicans to drop their efforts to confirm another justice by saying “we need to de-escalate, not escalate.”
Democrats interviewed by The Hill say Biden needs to stay out of it or come up with a way to keep the debate centered around what the GOP is doing now, not what Democrats will do in the future.
“No need for Biden to introduce a highly complex proposal this close to an election, which could elicit backlash from the moderate voters he’s trying to win back,” said Basil Smikle, the former executive director for the New York Democratic Party. “A likely third Trump nominee on the Court is already energizing the Democratic base.”
Biden has so far been able to avoid the issue.
He did not address adding justices or ending the filibuster in a speech over the weekend, in which he said the winner of the Nov. 3 presidential election should get to pick Ginsburg’s replacement.
In an interview with a local Wisconsin television station this week, Biden declined to answer when asked if he’d add more justices to the Supreme Court, saying he doesn’t want to shift the focus away from GOP efforts to confirm a new justice only weeks out from Election Day.
“Let’s say I answer that question. Then the whole debate’s going to be about what Biden said or didn’t say, Biden said he would or wouldn’t,” Biden said. “The discussion should be about why [Trump] is moving in a direction that’s totally inconsistent with what founders wanted. … It is a fundamental breach of constitutional principle. It must stay on that and it shouldn’t happen.”
It could be difficult for Biden to avoid confronting the issue in the final weeks of the election with a presidential debate one week away.
Fox News anchor Chris Wallace, the moderator of the first debate, announced Tuesday that the Supreme Court will be among the topics he covers next week.
Trump and the Republicans have been hammering Biden for refusing to address whether he’d add to the Supreme Court or release a list of his own potential nominees.
The rage on the left and the media interest in whether Democrats will retaliate should keep the issue on the front burner in the stretch run to the election.
Some Democrats are eager to see Biden tap into the anger over what they view as an eleventh-hour power grab by Republicans.
“Biden needs to show he understands that traditional tactics and the politics of goodwill no longer get the job done, and that he’s willing to play hardball,” said Democratic strategist Christy Setzer. “From Gore v. Bush on, Democrats have allowed ourselves to be outmaneuvered by appealing to honesty and fairness and quaint concepts like ‘count every vote’ and expecting — despite all past precedent — that the other side can be won over. They can’t. Stop trying.”
But some Democrats are worried there would be political consequences for Biden if he were to announce his support for proposals to expand the Supreme Court.
The Democratic nominee made it through the party’s primary by refusing to move too far to the left.
Biden is polling strong at the moment with suburban women, seniors and independents, as well as in battleground states across the Midwest, including Ohio, Iowa, Wisconsin, Michigan and Pennsylvania.
“Biden is a centrist,” said former Sen. Dennis DeConcini (D-Ariz.), who served for nearly two decades with Biden in the upper chamber. “Proposing to expand the Supreme Court just prior to the election is bad politics and bad governance. As hypocritical as it is for Republicans to do what they’re doing, I just don’t think this would help Democrats at the ballot box. It won’t help them win over suburban Republicans or independents, and if Biden is going to win big, that’s where it’s going to come from.”
Democrats say Biden’s approach has so far been the right one.
Neil Sroka, a strategist for the progressive group Democracy for America, says Democrats need to use the GOP’s move to fill the Supreme Court vacancy to push for all manner of reforms, including “right-sizing” the Supreme Court, eliminating the filibuster, reforming the Electoral College and moving on statehood for the District of Columbia.
But he said Biden taking a side on adding justices to the Supreme Court would only move the debate onto the GOP’s preferred terrain.
“Republicans want to avoid accountability for this blatantly hypocritical power grab by changing the discussion to what Democrats would do in response,” Sroka said. “Joe Biden shouldn’t get bogged down in these details.”
Sroka said that when Biden is asked about adding justices to the Supreme Court, he should talk in broad terms about how as president he’d work with congressional leaders to support legislation to ensure the country is not ruled by a “minority of reactionary extremists.”
DeConcini, the former senator, said Biden should propose a bipartisan presidential commission to come up with recommendations he’d consider about everything from the Supreme Court to the Electoral College and the filibuster.
Democrats say that line of messaging will ensure Biden is focused on what matters — winning the White House and supporting down-ballot candidates so that when there’s another opening on the Supreme Court, they’ll be the ones who get to fill it.
“In this case, Republicans have the votes to win and four years ago they had the votes to prevent a nominee from being confirmed,” said Mike Erlandson, the former chairman of the Democratic Party in Minnesota. “Sometimes when you change the rules, it can come back to haunt you, so it’s a good reminder that elections have consequences. A majority in a legislative body has a lot of power and the only way we can change who has the majority is through this election.”