Democrats warn Biden against releasing SCOTUS list

Senate Democrats are warning former Vice President Joe Biden against releasing a list of potential Supreme Court picks. 

Then-candidate Trump, in 2016, released a list of names he said he would pick from to fill a Supreme Court vacancy, and Biden is facing calls from activists on both the right and left to do the same. 

But several Democratic senators are warning Biden, who previously chaired the Judiciary Committee, against doing so.


Sen. Dick DurbinDick DurbinHarris calls for pathway to citizenship for Dreamers on DACA anniversary The Hill's Morning Report - Biden on Putin: 'a worthy adversary' McConnell sparks new Supreme Court fight MORE (Ill.), the No. 2 Senate Democrat and a member of the panel, told The Hill that Biden should not emulate Trump, who broke political norms with his list.

“I sincerely hope he does not do that,” Durbin said. “We ought to go back to the regular order of things. If and when vacancies occur he can look for the very best person at that moment.” 

“But understand what the Republicans were doing, they were making clear [to] the Federalist Society he was going to pre-clear every nominee for the Supreme Court, we should not be in the same business,” he added. 

Senate Minority Leader Charles SchumerChuck SchumerOvernight Energy: Schumer to trigger reconciliation process Wednesday | Bipartisan bill would ban 'forever chemicals' in cosmetics | Biden admin eyes step toward Trump-era proposal for uranium reserve GOP senator: I want to make Biden a 'one-half-term president' How Biden can get the infrastructure bill through Congress MORE (D-N.Y.) told reporters during a conference call that he also did not think Biden should release a list.

“I have a lot of faith in Joe Biden. ... I’ve talked to him a little bit about this and I think he understands the gravity of the issue,” Schumer said. 

The push for Biden to provide more details, and specific examples, of who he might pick for the Supreme Court comes as the federal judiciary is viewed as a key issue for the Democratic base in the wake of Republicans changing the rules for confirming Supreme Court nominees in 2017 and a controversial, vitriolic confirmation battle over Justice Brett KavanaughBrett Michael KavanaughMcConnell sparks new Supreme Court fight Supreme Court confounding its partisan critics Gorsuch, Thomas join liberal justices in siding with criminal defendant MORE in 2018. 


Congressional Democrats have signaled that they will increasingly focus on the impact GOP control of the Senate and the White House has had on the courts. But progressive groups have urged Biden and other Democrats to go further by embracing structural reforms.

A coalition of outside groups signed onto a letter this week supporting such steps as expanding the size of the Supreme Court, which they wrote would be the “fastest, most effective way to reverse the Republican theft of the Supreme Court.” They also support other reforms like term limits and a code of ethics.

Biden has signaled he’s concerned about the courts’ direction, and that the GOP could seek to keep filling seats until the end of the year even if Trump loses reelection.

During a NAACP event, Biden said he was “very concerned” that Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOn The Money: Schumer to trigger reconciliation process on Wednesday | Four states emerge as test case for cutting off jobless benefits GOP senator: I want to make Biden a 'one-half-term president' McConnell presses for 'actual consequences' in disclosure of tax data MORE (R-Ky.) was going to pressure older judges to retire. 

“I'm going to urge the Democrats in the U.S. Senate to block the ability to have a vote on those judges. Because we are in the middle of an election ... We’re not going to let that happen,” Biden said, though Democrats aren’t able to block judges unless GOP senators also vote against a nominee. 

But Biden has stopped short of embracing many of the reforms called for by progressives. 

“I would not get into court packing,” Biden said during a Democratic debate late last year. “We add three justices. Next time around we lose control, they add three justices. We begin to lose any credibility the court has at all.”

His campaign didn’t respond to a request for comment on Thursday about calls for him to release a list of who he would pick from if he wins the White House and there is a Supreme Court vacancy. Two Supreme Court Justices, Ruth Bader GinsburgRuth Bader GinsburgOcasio-Cortez says Breyer should retire from Supreme Court Progressives want to tighten screws beyond Manchin and Sinema Juan Williams: Time for Justice Breyer to go MORE and Stephen BreyerStephen BreyerThe Hill's Morning Report - Biden on Putin: 'a worthy adversary' McConnell sparks new Supreme Court fight Senate confirms Garland's successor to appeals court MORE, are in their 80s. Two others, Clarence ThomasClarence ThomasMcConnell sparks new Supreme Court fight Supreme Court unanimously rules certain crack offenders not eligible for resentencing Supreme Court confounding its partisan critics MORE and Samuel AlitoSamuel AlitoMcConnell sparks new Supreme Court fight Gorsuch, Thomas join liberal justices in siding with criminal defendant Supreme Court narrows cybercrime law MORE, are in their 70s. 

Biden has committed to naming a black woman to the Supreme Court, which would mark a historic first. 

“I commit it that if I’m elected president and have an opportunity to appoint someone to the courts, I’ll appoint the first black woman to the courts. It’s required that they have representation, now it’s long overdue,” Biden said earlier this year during a debate against Sen. Bernie SandersBernie SandersProgressives rave over Harrison's start at DNC Zombie Tax punishes farmers to fill DC coffers Progressives threaten to block bipartisan infrastructure proposal MORE (I-Vt.). 

Biden said during an interview with ABC’s “The View” that there were at least four women whom he viewed as qualified to serve on the Supreme Court, but did not name names. 

But some progressives say specifying a list of who he would pick from could be an olive branch to voters who might be wary of him as the party’s standard-bearer.


“We think he should take the next step and say who those people are, so we have a more concrete sense of who he would nominate, sort of what the values are that he hopes those people might bring to the Supreme Court,” Christopher Kang, the chief counsel for Demand Justice, told The Hill in a recent interview. 

Kang added it would be “reassuring” to get more details on whom Biden is considering. 

“I think it could be an opportunity for him to really help consolidate the Democratic base by showing that the people he’s thinking about are people who have not only led exemplary legal careers but are inspiring for the work that they’ve done,” he said. 

It’s not just progressives who want to see who Biden could be looking at for the Supreme Court. 

Carrie Severino, the president of the conservative Judicial Crisis Network, wrote in an op-ed that Biden would rather “prefer to play hide the ball” than say who he will nominate.

“Independents and the right would be just as interested to know who Biden has in mind. If he becomes President BidenJoe BidenMellman: Trump voters cling to 2020 tale FDA authorizes another batch of J&J vaccine Cotton warns of China collecting athletes' DNA at 2022 Olympics MORE, they fear the Supreme Court may be radicalized, perhaps to deliver an America of the kind that Alexandria Ocasio-CortezAlexandria Ocasio-CortezProgressives rave over Harrison's start at DNC Wray suggests limits on FBI social media tracking a 'lesson learned' after Jan. 6 Puerto Rico's former governor stages a comeback MORE and the far left dream of,” she added, referring to the progressive New York House member. 


Trump, in May 2016, released a list of Supreme Court picks. At the time there was a vacancy because of the death of Justice Antonin Scalia, and the decision by the Trump campaign was largely viewed as an attempt to help reassure GOP voters who may have otherwise been wary of Trump as the party’s nominee. 

But asked about Biden releasing a similar list, Sen. Sheldon WhitehouseSheldon WhitehouseZombie Tax punishes farmers to fill DC coffers Progressives threaten to block bipartisan infrastructure proposal This week: Democrats face fractures in spending fight MORE (D-R.I.), who has been vocal on the GOP’s influence on the courts, said “I’m not advising him on that, but I wouldn’t recommend it.” 

Sen. Debbie StabenowDeborah (Debbie) Ann StabenowSenate crafts Pelosi alternative on drug prices Lobbying world Schumer tactics on China bill reveal broader trade strategy MORE (D-Mich.) aligned herself with Whitehouse. 

“I have a … great confidence in Joe Biden and his capacity to put forward judges that are competent, that have the best interest of the American people at heart,” she said, “that will care about the Constitution and an independent judiciary and basically begin to unwind … what the Republicans have been doing.”