Democrats warn Biden against releasing SCOTUS list

Senate Democrats are warning former Vice President Joe BidenJoe BidenMore than 300 military family members endorse Biden Five takeaways from the final Trump-Biden debate Biden: 'I would transition from the oil industry' MORE 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 DurbinRichard (Dick) Joseph DurbinBipartisan group of senators call on Trump to sanction Russia over Navalny poisoning Republicans advance Barrett's Supreme Court nomination after Democrats boycott committee vote The Hill's Morning Report - Sponsored by Goldman Sachs - Pelosi, Mnuchin push stimulus talks forward, McConnell applies brakes 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 SchumerFive takeaways on Iran, Russia election interference Pelosi calls Iran 'bad actor' but not equivalent to Russia on election interference Schumer says briefing on Iranian election interference didn't convince him effort was meant to hurt Trump 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 KavanaughClean energy opportunities in a time of crisis Susan Collins and the American legacy The Senate should evoke RBG in its confirmation of Amy Coney Barrett 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 McConnellMcConnell says 'no concerns' after questions about health Overnight Health Care: Trump says he hopes Supreme Court strikes down ObamaCare | FDA approves remdesivir as COVID-19 treatment | Dems threaten to subpoena HHS over allegations of political interference at CDC The Hill's Campaign Report: Trump, Biden face off for last time on the debate stage 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 GinsburgThe Hill's Campaign Report: Trump, Biden face off for last time on the debate stage Clean energy opportunities in a time of crisis Trump when asked if he'd be kinder in his second term: 'Yes, I think so' MORE and Stephen BreyerStephen BreyerSupreme Court reinstates ban on curbside voting in Alabama The Senate should evoke RBG in its confirmation of Amy Coney Barrett Supreme Court hears landmark B copyright fight between Oracle, Google MORE, are in their 80s. Two others, Clarence ThomasClarence ThomasPlaintiff and defendant from Obergefell v. Hodges unite to oppose Barrett's confirmation The Senate should evoke RBG in its confirmation of Amy Coney Barrett Supreme Court's Pennsylvania mail ballot ruling tees up test for Barrett MORE and Samuel AlitoSamuel AlitoPlaintiff and defendant from Obergefell v. Hodges unite to oppose Barrett's confirmation Supreme Court's Pennsylvania mail ballot ruling tees up test for Barrett Supreme Court denies GOP bid to block extended mail ballot due date in Pennsylvania 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 SandersBiden defends his health plan from Trump attacks Progressives blast Biden plan to form panel on Supreme Court reform Sanders: Progressives will work to 'rally the American people' if Biden wins 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 Biden, they fear the Supreme Court may be radicalized, perhaps to deliver an America of the kind that Alexandria Ocasio-CortezAlexandria Ocasio-CortezHillicon Valley: Threatening emails raise election concerns | Quibi folds after raising nearly B | Trump signs law making it a crime to hack voting systems Ocasio-Cortez draws hundreds of thousands of viewers on Twitch livestream OVERNIGHT ENERGY: Democrats push expansion of offshore wind, block offshore drilling with ocean energy bill | Poll: Two-thirds of voters support Biden climate plan | Biden plan lags Green New Deal in fighting emissions from homes 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 WhitehouseHillicon Valley: Threatening emails raise election concerns | Quibi folds after raising nearly B | Trump signs law making it a crime to hack voting systems Trump signs legislation making hacking voting systems a federal crime Congress must repeal tax breaks for the wealthy passed in CARES Act 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 StabenowHealthcare, retirement security seen as top issues for older voters, lawmakers say Dems to focus on issues, not character, at Barrett hearings Lobbying world 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.”