Election 2020

What to Expect From a Joe Biden Supreme Court Pick

What sort of judicial nominee can we expect from the Democratic candidate?


If Democratic candidate Joe Biden wins the presidency this fall, he will almost certainly have the opportunity to nominate one or more justices to the U.S. Supreme Court during his first term. (Whether he'll have the votes to confirm a nominee in the Senate is another story.) So what sort of judicial pick can we expect from Biden?

It's safe to assume that any Biden nominee will hold standard liberal legal views on hot-button issues like abortion and gay rights. A Biden SCOTUS pick might also be eager to eschew stare decisis in favor of overturning recent "conservative" precedents, such as the Supreme Court's Second Amendment ruling in District of Columbia v. Heller (2008) and its First Amendment ruling in Citizens United v. Federal Election Commission (2010).

The real wildcard is criminal justice. Just as Republican appointees to the federal bench are sharply divided in criminal justice cases, so too are their Democratic counterparts. Justice Sonia Sotomayor, for example, has an admirable record as a Fourth Amendment defender. Justice Stephen Breyer does not. Breyer's record features routine votes to grant broad judicial deference to law enforcement officers and agencies. In short, it makes a big difference if Biden picks a jurist in the mold of Sotomayor or one in the mold of Breyer. Libertarians should hope for the former.

Some Democrats might like to see Biden avenge past wrongs by re-nominating federal Judge Merrick Garland to the Supreme Court. A member of the U.S. Court of Appeals for the District of Columbia Circuit, Garland was President Barack Obama's choice to replace the late Justice Antonin Scalia in 2016. But Senate Republicans blocked Garland at every turn, refusing even to hold a hearing on his nomination.

If Biden does resurrect the Garland nod, he would leave criminal justice reform advocates in the lurch. Garland has a Breyer-like record of judicial deference to law enforcement. In fact, Neil Gorsuch, who ultimately got the seat that Garland was first nominated to fill, is more "liberal" than Garland on criminal justice matters.

If Biden wants to make criminal justice reformers happy, he might consider nominating federal Judge Paul Watford, who was rumored to be on Obama's SCOTUS shortlist and who has stood out for his pro–Fourth Amendment rulings while serving on the U.S. Court of Appeals for the 9th Circuit.

The liberal group Demand Justice has been lobbying in recent months for the next Democratic president to pick a SCOTUS justice from a list "that prioritizes unabashedly progressive lawyers and legal thinkers, who have all too often been pushed aside." The group proudly boasts that "none of the lawyers on our list are corporate lawyers."

Barring "corporate lawyers" from serving on SCOTUS would mean that Justice Sotomayor—who represented corporate clients earlier in her legal career—would never have been nominated for the seat she now fills. Biden will probably ignore that self-defeating litmus test.