Joe Biden’s court vacancy plan: more talk of health care and the pandemic

“This is a critical time and is where we get to see the vice president’s values and relationships and strategic mindset."

Joe Biden.

For months Joe Biden has condemned President Donald Trump as a failed steward of the nation’s well-being, relentlessly framing the 2020 election as a referendum on the president’s handling of the coronavirus pandemic.

Now, confronted with a moment that many believe will upend the 2020 election — the death of Justice Ruth Bader Ginsburg and the prospect of a bitter Supreme Court confirmation battle — Biden’s campaign is sticking to what it believes is a winning strategy. Campaign aides said Saturday they would seek to link the court vacancy to the health emergency gripping the country and the future of health care in America.


While confirmation fights have long centered on hot-button cultural divides such as guns and especially abortion, the Biden campaign, at least at the start, plans to focus instead on protecting the Affordable Care Act and its popular guarantee of coverage for people with preexisting conditions.

Arguments in a seminal case that could determine the future of the health care law are set for a week after Election Day, with the administration supporting a Republican effort to overturn it. Biden will accuse the president, as he already has, of trying to eliminate protections for preexisting conditions during a pandemic, aides said, with the stakes heightened by a Supreme Court now short one of the liberal justices who had previously voted to keep the law in place.


Despite the Biden team’s confidence, the prospect of Trump’s appointing a third justice to the Supreme Court in his first term injects a highly volatile element into the race just six weeks before the election. Court battles have long been seen as greater motivation for Republican voters than for Democrats, although the record sums of money flooding into Democratic campaigns in the hours after Ginsburg’s death offered progressives hope that they might be equally energized this time.

Still, Biden campaign officials said on Saturday that they did not see even a Supreme Court vacancy and the passions it will inevitably inflame as reason to fundamentally reorient the campaign’s approach. Biden has consistently led the president nationally and in polls of battleground states throughout the summer.


For Democrats, the focus on health care — overlaid by the pandemic — is a rerun of the successful playbook that helped power the party’s takeover of the House of Representatives in 2018 and a fidelity to Biden’s steadfast promise to defend Obamacare, a pledge that helped him navigate through the 2020 primaries.

“This is a choice between a court that will defend your health care and take your health care away,” said Heidi Heitkamp, a former Democratic senator from North Dakota, who lost in 2018 after voting against Trump’s last Supreme Court nominee, Brett Kavanaugh.

“The winds have shifted on Obamacare,” she said, linking the law’s future to the coronavirus crisis. “The pandemic is about health care. So it’s a continuing of a discussion about health care and who’s the candidate most likely to protect you and your health care.”


The Biden campaign could also still seize on the uncertain future of abortion rights to mobilize younger voters, raising the specter of a Supreme Court tilted toward a 6-3 conservative majority.

“If you want something to fire up young people who weren’t all that interested this year, this is it,” John Anzalone, a pollster for Biden, said, noting that his research suggested that even apolitical young voters grasped abortion politics. “They know Roe v. Wade.”

Biden quickly called on Friday for the Senate to stop any nomination to the Supreme Court before the election, and Senate Democrats huddled on a Saturday afternoon conference call to plot their path forward. Trump pledged on Saturday to move forward “without delay,” saying that his nominee would “most likely” be a woman and that he expected to announce his pick in the coming days. Sen. Mitch McConnell of Kentucky, the majority leader, has vowed that there will be a floor vote.


Sen. Chuck Schumer of New York, the Democratic leader, exhorted his Democratic colleagues to communicate the real-world stakes of a conservative-dominated court, urging them to make the case that another Trump pick would jeopardize the health law.

“Health care, protections for preexisting conditions, women’s rights, gay rights, workers’ rights, labor rights, voting rights, civil rights, climate change and so much else is at risk,” Schumer told his colleagues, according to a person on the call.

Biden and Schumer were scheduled to speak late in the day. Biden himself had no events scheduled Saturday and was expected to spend part of the week ahead preparing for the first debate, which will be held Sept. 29.


Biden — who has pledged to nominate a Black woman to the Supreme Court — was not expected to move to announce his own list of possible choices before Election Day, as Trump recently did. In a statement, Biden’s campaign said the former vice president was not “going to play politics on this as Donald Trump has.”

Rep. Alexandria Ocasio-Cortez of New York, a leader of the Democratic Party’s progressive wing, agreed with that approach. “It’s less about motivating people around a specific individual to be named to that court,” she said in an interview. “I think we are highly motivated about just making sure that vacancy is protected and preserved for the next president.”


“Right now,” she said of naming names, “the costs outweigh the benefits.”

The Biden campaign will have an unusually direct role in the confirmation fight through Sen. Kamala Harris of California, Biden’s running mate, who stopped by the steps of the Supreme Court on Saturday morning. As a member of the Senate Judiciary Committee, Harris will serve as an interrogator for whomever Trump nominates. She has already shone in that role in some notable confrontations with past Trump appointees, including both of his attorneys general.

Biden’s advisers and allies believe that the political environment in the country has reversed years of conventional wisdom that court fights better mobilize conservatives than progressives. Democratic strategists said McConnell’s decision in 2016 to block President Barack Obama’s nomination of Judge Merrick Garland; the election of Trump; and clarifying court decisions on crucial issues involving immigration, gay rights and abortion had flipped that dynamic.


“Democrats should not approach this from a defensive posture,” said Guy Cecil, the leader of one of the party’s biggest super PACs, Priorities USA, noting that internal polling showed the court as the biggest motivating issue after a defeat of Trump. “Our goals of stopping this nomination and winning the election are aligned.”

Democratic donors poured unprecedented sums of money into campaigns and causes in the hours after Ginsburg’s death was announced, donating about $80 million online in the first 24 hours.

An avowed institutionalist and former Judiciary Committee chairman himself, Biden won the Democratic primary campaign in part by ignoring some of loudest voices on the left.


Just this last week, the former vice president predicted in a CNN town hall that there would be “somewhere between six and eight Republicans who are ready to get things done” once Trump is gone. His instincts and his inclination to reach across the aisle, which have been pilloried by many on the left as naïve in this era of hyperpolarized politics, will be severely tested with the looming confirmation fight.

Some progressive groups are already mounting a pressure campaign on the party and Biden to embrace adding new justices to the court as a countermeasure in 2021, presuming that the Democrats seize control of the White House and Senate in November.


Maurice Mitchell, the national director of the Working Families Party, urged Biden to say that he would “stop at nothing” to prevent a “hyperconservative court.”

“People ultimately want a fighter,” he said. “And this is an opportunity to demonstrate the fight that he has within him.”

Biden has previously said that he opposes court-packing. “We’ll live to rue that day,” he said last year.

Other Democrats encouraged Biden to draw on his decades of relationships and experience as a senator and vice president to navigate the final, fraught weeks of the campaign during a Supreme Court fight.

“This is a critical time and is where we get to see the vice president’s values and relationships and strategic mindset,” said Leah Daughtry, a veteran Democratic strategist. “In how hard he fights, in how smart his operation is, as we go through these last 40 days.”


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