Where Does Joe Biden Stand on the Supreme Court Nomination?

Erica Gonzales
·5 mins read
Photo credit: Chip Somodevilla - Getty Images
Photo credit: Chip Somodevilla - Getty Images

From Harper's BAZAAR

Following the news of Ruth Bader Ginsburg's death, former Vice President Joe Biden honored her legacy and delivered a strong proposal: that her successor in the Supreme Court should not be chosen until after the election. "But there is no doubt, let me be clear, that the voters should pick the president, and the president should pick the justice for the Senate to consider," he said at the time, then 46 days away from Election Day. (A majority of voters feel this way, too.)

President Trump has nominated Amy Coney Barrett for the vacant seat, and Senate majority leader Mitch McConnell has expressed interest in confirming whoever the president chooses. The Senate Judiciary Committee is set to start hearings on October 12. Here's where the Democratic presidential nominee stands with the Supreme Court.

He does not agree with Barrett's nomination.

After Trump officially announced his nomination of Barrett, Biden criticized the decision, citing the judge's track record of "disagreeing with the U.S. Supreme Court’s decision upholding the Affordable Care Act" and "[critiquing] Chief Justice John Roberts’ majority opinion upholding the law in 2012."

Biden wrote in a statement, "The American people know the U.S. Supreme Court decisions affect their everyday lives. The United States Constitution was designed to give the voters one chance to have their voice heard on who serves on the Court. That moment is now and their voice should be heard. The Senate should not act on this vacancy until after the American people select their next president and the next Congress."

He didn't want to name his potential nominee before the election.

Before Trump nominated Barrett, Biden said he wouldn't reveal his own list of potential SCOTUS nominees until after November 3.

"First, putting a judge's name on a list like that could influence that person's decision making as a judge, and that would be wrong," he said, per CNN. "Second, anyone put on a list like that under these circumstances will be subject to unrelenting political attacks because any nominee I would select would not get a hearing until 2021 at the earliest. She would endure those attacks for months on end without being able to defend herself.

"And thirdly and finally, perhaps most importantly, if I win, I'll make my choice for the Supreme Court not based on a partisan election campaign, but on what prior presidents have done ... only after consulting Democrats and Republicans in the United States Senate and seeking their advice and asking for their consent."

Photo credit: Jeffrey Markowitz - Getty Images
Photo credit: Jeffrey Markowitz - Getty Images

He wanted to nominate a Black woman for the court.

In a Democratic debate earlier this year, Biden said, "I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented."

He followed up on that promise in June, when he revealed he and his team were already going through their options. "We are putting together a list of African American women who are qualified and have the experience to be on the court. I am not going to release that until we go further down the line in vetting them as well," he said, per The Washington Post.

The nominee could have gone on to be the first Black woman and the third Black justice, following Thurgood Marshall and Clarence Thomas, to serve in the Supreme Court.

He has said he doesn't want to pack the court, but recently skirted the question.

The idea of expanding the number of justices on the Supreme Court (also known as "court packing") especially gained momentum following Justice Ginsburg's passing. Democrats favor the notion to challenge Republican moves, including the current hasty nomination process, The New York Times points out.

When asked whether he opposes the calls for court packing this month, Biden skirted the question. “It’s a legitimate question. But let me tell you why I'm not going to answer that question: because it will shift all the focus. That’s what he wants,” he told Action 2 News, referring to Trump.

However, Biden has faced a similar question before, on the debate stage in 2019. Moderator Erin Burnett asked whether the former VP would consider packing the court to protect reproductive rights if Roe v. Wade is overturned.

"I would not get into court packing," said at the time. "We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all."

He saw two successful SCOTUS nominations as vice president.

The first was when President Obama nominated Sonya Sotomayor, who was confirmed in 2009. She became the first Hispanic Supreme Court Justice. The second was Elana Kagan, who was confirmed in 2010. In 2016, Obama nominated Merrick Garland after Justice Antonin Scalia's death, but the nomination was not confirmed.

Photo credit: SAUL LOEB - Getty Images
Photo credit: SAUL LOEB - Getty Images

Biden has been involved in Supreme Court confirmations since before his tenure as VP. According to The Los Angeles Times, he helped "shepherd" Justice Ruth Bader Ginsburg's confirmation in 1993 when he was a chairman of the Senate Judiciary Committee, the body that considers Supreme Court nominations. He also "defeated Robert Bork," (his own words) a conservative judge nominated by Ronald Reagan who was ultimately rejected.

He also led the committee during Justice Clarence Thomas's confirmation hearings, which included Anita Hill's testimony about her allegations that Thomas sexually harassed her. Biden's mishandling of the event—from the all-male committee's sexist questioning to denying three other women from testifying in-person—is one of the biggest stains on his career. "She did not get treated well," Biden acknowledged in 2019. "That’s my responsibility."

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