Change the subject? If Biden thought it would help him beat Trump, he would be eager to change the subject. But he knows the coming Supreme Court battle is a shot in the arm for Trump’s campaign — and a mortal danger to his.
In 2016, exit polls showed that Trump trounced Hillary Clinton by 15 points among voters for whom the Supreme Court was the most important issue, 56 to 41 percent. And it was the top issue for a lot of voters. Twenty-six percent of Trump voters — about 16.4 million people — reported that the court was the most important factor in their decision, compared with just 18 percent of Clinton voters. In an election that Trump won by about 78,000 votes in Pennsylvania, Wisconsin and Michigan, these voters arguably put him in the Oval Office.
But Trump’s success in transforming the judiciary — securing the Supreme Court’s conservative majority and confirming more than 200 lower-court judges — meant judicial appointments were shaping up to be a weaker argument in 2020. Not anymore. A bruising fight over replacing Ginsburg just weeks before Election Day could prove just as decisive in Trump’s quest for a second term.
In 2016, Trump put out a list of candidates for the Supreme Court, and this month he released a new list for 2020. Biden is refusing to do the same. Why? He has said he plans to put a Black woman on the court, so he must have some names in mind. Indeed, Biden said in June, “We are putting together a list of a group of African American women who are qualified and have the experience to be on the court.” Why not share that list with voters as Trump has? Simple. Because Biden knows that doing so will help Trump. But Biden’s position is unsustainable. He says he should be allowed to pick Ginsburg’s successor but won’t say who his nominee might be.
Similarly, Biden can’t continue to dodge questions about court packing. The fact is, many Democrats supported packing the court long before Ginsburg died. Even if she had survived into Biden’s potential first term, and Justice Stephen G. Breyer retired, confirming both of their successors would not have altered the ideological makeup of the court. Democrats likely would not be satisfied simply swapping out liberal justices. They would have used Merrick Garland’s “stolen” seat as a pretext to install a liberal majority. Now Ginsburg’s “stolen” seat will provide the excuse.
But they can’t do it without President Biden’s signature. He will have to take a position on whether he will pack the court. He is reluctant to do so because if he says no, then he will dispirit his base; and if he says yes, then he will drive reluctant Trump voters for whom the Supreme Court is a deciding issue into Trump’s arms once again.
Exit polls in 2016 showed 20 percent of Trump’s voters didn’t like him. Democrats were hoping these were “Never Hillary” voters who would cut Democrats' way when she was not on the ballot. But the Supreme Court battle has thrown a wrench in their plans. Many reluctant Trump voters cast their ballots for the president precisely because of the Supreme Court. And they were pleased with his appointments. Polls showed that 86 percent of reluctant Trump voters supported his nomination of Neil M. Gorsuch, for example. The debate over court packing, combined with the coming smear campaign against Trump’s nominee, could drive many of these reluctant Trump voters back into the president’s camp.
Democrats need to be careful. In 2018, their ruthless assault on Brett M. Kavanaugh cost them their chance to regain control of the Senate. Democratic Sens. Heidi Heitkamp (N.D.), Joe Donnelly (Ind.) and Claire McCaskill (Mo.) were thrown out of office by voters furious over their party’s campaign of character assassination against Kavanaugh. In a year when Democrats succeeded in retaking the House, voters expanded the GOP’s Senate majority by two seats — giving Republicans the mandate they now claim to confirm Ginsburg’s successor.
If Democrats carry out a similar hit job on Trump’s next nominee, while Biden refuses to say whom he would appoint and whether he would pack the Supreme Court, it might cost them the White House.