Well, okay. But if you ask me, that’s a serious mistake.
Biden needs to make his own selection to the court, as if he were already elected. He needs to do it publicly, and soon.
Under ideal circumstances, of course, the country might have taken a moment to reflect on losing one of the most influential jurists in its history. But nothing about this moment is ideal. Within hours of Ginsburg’s death Friday, crass political calculation had overtaken the conversation.
Political analysts quickly declared it a question of which party’s base would be more energized by a looming confirmation fight. We analysts love this word — “base.” It makes politics feel so binary and orderly.
And yet, as I’ve written with annoying regularity, this election isn’t really about the bases, both of which are already more energized than the core of a nuclear plant.
No, it’s going to come down to a slice of independents and conservatives who reluctantly voted for President Trump in 2016 and are trying mightily to find a comfort level with the Democratic nominee this time.
For a lot of these voters, the most obvious bright spot in Trump’s otherwise chaotic and unseemly presidency has been the seating of two conventional conservative justices. They see the court as a necessary bulwark against the statism of the ascendant left.
Even Trump understands this. (And if he doesn’t, Senate Majority Leader Mitch McConnell certainly does.) In the coming days, Trump will nominate another conservative judge, this time a woman, aimed squarely at the hearts of these straying voters.
And then — mark my words — he will hold that judge up against some theoretical choice on the left: someone (or maybe a few someones) whose record offers plenty of evidence to suggest that the left is coming to eliminate free enterprise and tear down all the town-square statues.
Trump’s underlying message to these voters will be simple and alluring. Okay, maybe you find me appalling. But do you want a solid, conservative, anti-abortion justice for the next 30 years? Or do you want to take your chances with whatever radical leftist Biden will be forced to nominate? Hey, your choice.
If anything can get Trump reelected at this point, that argument really isn’t a bad bet.
Biden’s answer to these voters can’t just be: “Trust me, folks.” They don’t. They may find Biden personally unobjectionable, but that’s a different thing from assuming he will resist the pressure from his party’s leftist flank to name a justice well outside the ideological mainstream.
I understand why Biden is refusing to release a short list of potential justices. It sounds like one of those halfway solutions that would end up mollifying no one; Republicans would zero in on the person whose record can be most easily distorted, and leftists would revolt over whichever selection seems the least woke.
The better answer for Biden is the boldest. He should start privately vetting a few potential justices, and he should commit to choosing one well before voters go to the polls, so they know exactly what’s coming if he wins.
As for whom Biden should nominate, I’ll leave that to the experts around him. Biden has said he intends to choose an African American woman, and it certainly makes sense to fill Ginsburg’s seat with someone whose story inspires children in a fractured America.
Given the circumstances, there would be some powerful symbolism in re-nominating Merrick Garland, the moderate federal judge whom President Barack Obama tried to seat during his final year in office. The vetting there is already done, though Garland’s age and the lack of enthusiasm he would generate on the left make him an unlikely pick.
An even less likely choice, but maybe the safest politically, would be Obama himself; he’s a onetime constitutional law professor whose record is universally known and whose broad appeal with the electorate has already been demonstrated. (Obama might not want the job, but it was good enough for President William Howard Taft 100 years ago.)
Apostles of the base theory of politics — chiefly my colleagues in the media and partisan activists — will say that the whole calculation here is wrong. No matter whom Biden might choose to reassure persuadable voters, they’ll argue, he risks infuriating the reliably ideological constituencies he needs on Election Day.
But the far greater risk would be to let Trump transform this last stage of the campaign into a choice between the conservative judge you can see and the hypothetical, wild-eyed leftist you can only imagine.
Biden needs to fill in the blank here, or gleeful Republicans are going to fill it in for him.