Election 2020

What to Expect From a Joe Biden Supreme Court Pick

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

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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.

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  1. Personally, I just wonder if Biden will choose someone who’s actually been a judge before. Apparently that’s not a necessary part of the job.

    1. Hillary?

      1. I figure noted Constitutional scholar O’Bama.

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  2. Biden’s SC picks will acknowledge the obvious truth of our Constitution — it guarantees the right to access abortion care, but not the right to own a gun.

    #AbortionAboveAll
    #SUPER-PRECEDENT

    1. And applies to all world citizens.

  3. I think its cute that you think Biden will pick a nominee.

    1. I think it’s adorable you think Biden won’t nominate two persons in early 2020, after he and the Congress enlarge the Supreme Court.

      Must be that ‘superstition gene’ that lets some people fall for anything.

      1. Biden won’t nominate anybody.

        His handlers will.

        1. Just like Trump. Remember Trump draws from a list, because he is really not that smart with legal picks. Remember he picked Michael Cohen for a personal lawyer.

          1. Well, if we’re lucky, Biden will just plagiarize Trump’s list. He tends to do that.

        2. No they won’t. He’s not going to win.

      2. Two? If they enlarge the Supreme court it’s going to be a lot more than two.

        First, RBG isn’t long for this world, so there’s one.

        Next, the proposals I’ve seen have been to enlarge the court to 13 or 15, not 11, to make sure the left wins even on cases where they lose some of their own justices.

        So, minimum would be 3, up to 7.

      3. Keep projecting, Rev.

    2. unreason is all in for Kamala Rouge to win.

      They were delirious in 2016 when Hillary lost to trump and it will be the same this election.

      1. I don’t know if what little is still left of Welchie Boy’s sanity can survive a Trump re-election.

  4. PS: Now is a great time to revisit Shikha Dalmia’s October 2016 classic Trump Will Torch the Supreme Court. Like all her writing, it’s held up amazingly well.

    1. She would be a prophetess in the Mirror Universe.

    2. I particularly appreciate the shrewd assertion in the Dalmia article that tipping the Supreme Court decidedly left would have no serious affect on the nation. Conservatives are nothing but fearmongers. The court has deftly upheld the right to abortion under any circumstance and refused the silly notion that churches should be able to congregate and worship as they please. Bunch of crybabies and hooligans these white supremacist church-goers are.

    3. One thing about her commentary, I was amused to see that one of her predictions actually came true: “A Trump presidency is likely to be a rolling wave of one manufactured constitutional crisis after another.” I’ll note, however, that her prediction failed to mention *who* would be doing the manufacturing.

  5. What to Expect From a Joe Biden Supreme Court Pick

    A Stalinist or a satanist.

    1. Sniffable hair and no personal space boundaries?

  6. Some Democrats might like to see Biden avenge past wrongs by re-nominating federal Judge Merrick Garland to the Supreme Court.

    Not gonna happen. Garland was only nominated because Obama wanted to tell the Republican-controlled Senate that confirming the “moderate” Garland was their best option, that if they didn’t, they’d get a much more radical nominee from President Clinton. He was playing his usual game of playing good cop, this time to Hillary’s bad cop.

    This time, if President Harris–I mean President Biden–is naming the justices, (s)he will have no reason to nominate anyone as moderate as Garland, but will have every incentive to channel her/his inner Reverend and to yell “Open wider, clingers,” as (s)he crams some Critical Legal Theorist down the Senate’s throat.

    1. Pretty much that. Where it would get interesting is if the Republicans control the Senate. Chances are that the next Justice to be replaced will be RBG’s corpse. Since RBG is a liberal justice, a Republican controlled Senate would have no incentive to approve a Democratic appointed justice to replace her. They could refuse to confirm anyone and leave the court with at 8 members with a 5-3 conservative majority.

      In the past, it would be inconceivable that a Republican Senate would do that. But Harry Reid created so much bad blood by ending the filibuster, I think today that is exactly what a Republican Senate would do.

      The conservative Justices are all likely to make it through all of the next four years. At least two liberal justices, Ginsberg and Breyer, are both over 80 and unlikely to survive the next four years. And if you believe some of the rumors about Sotomayor’s health maybe a third might not make it.

      So if the Democrats don’t take the Senate, President Biden nor President Harris likely won’t appoint anyone to the court.

      1. Yeah, nope.

        First, the Republicans have about twice as many Senators up for reelection as the Democrats do this year. And a substantial number of those races are considered tossups. So the likely best case scenario for the Republicans is that they barely hold onto the Senate, worst case is that the Democrats get a significant majority.

        If they hold onto it, they’ll need absolute caucus discipline to prevail on any vote, and some of those Senators are RINOs who will be retiring in a few years, and so don’t have to worry about what the voters back home think.

        No, I don’t see a President Biden being unable to fill vacancies on the Supreme court as at all likely, unless he picks somebody totally absurd, so far out of even the mainstream that even Democratic Senators might have second thoughts.

        1. Piling on, and mentioned in Brent’s second paragraph, the Republicans never have the kind of party discipline that characterizes the D’s. There’s always a Murkowski, McCain, or Collins to ‘vote their conscience’, and screw things up.

          I think Biden’s hypothetical pick will sail smoothly down the ways, greased by an infinite supply of fiat pork. No matter who he picks. It’ll probably be someone who makes Reinhardt look conservative.

          1. They never had that kind of discipline until they turned down Mereck Garland. I didn’t think they would do that and they did.

        2. Brett, most of the Republicans are up for re-election in safe states. The Democrats have a very very narrow path to taking the Senate. It is unlikely to happen. They would have to win every toss up state and suffer no upsets in their safe seats to even have a chance.

          That is not going to happen. And if it looks like Biden is going to win, it becomes even less likely as the country balks from the prospect of handing the Democrats full control of the government. You are very mistaken on that.

          And if the Republicans do, things are so partisan and there is so much bad blood in the Senate, you are kidding yourself if you think the Democrats could get their usual nutbag nominee through.

          1. I think you’re whistling past the graveyard, John. I mean, I hope it turns out like that if Biden, God forbid, should win, but I’ve little faith it will. Just as easy for the squishy Republicans to look at a Biden win and tied Senate as a sign the country is tired of right wing judicial appointments.

            Or whatever excuse Murkowski needs. Maybe it’ll be a ban on fracking, while leaving the North Slope alone? But it’ll be something. Maybe it’s rejecting the craziest kook the D’s first nominate? I don’t see them stonewalling confirmations though for two years. ‘Have to be fairrrrrrr’ and all that.

          2. Whether or not “the country balks” is irrelevant, given that “the country” doesn’t vote for senators, people from states do. I don’t see it as anywhere near likely that moderate Democrats anywhere will say, “It would be bad if Biden won and he had a Democratic congress, so I’ll vote for a Republican.”

  7. Biden wont be choosing anyone. The choice will be made in his name though. Given the far left people surrounding him dont expect a pick from any rational pool of judges.

    Hopefully republicans keep the senate, and then smashmouth every piece of shit legislation and nomination that comes through. But given the mood of the country I expect turnover will happen and the totalitarians to gain control for at least 2 years. Maybe we’ll take it back someday but who knows. We could be looking at 12-16 years of democrat authoritarian rule and that will likely make the US come undone forever.

    1. Disaffected clingers are among my favorite culture war casualties.

      1. Contemplating suicide?

      2. I strongly doubt that Biden will nominate a white male to the Court, at least not with his first pick, and especially not if it’s Ginsburg’s seat he is filling. He’s also unlikely to pick anyone over 55.

        Obama could be an exception to the age restriction, but would he choose to serve as an associate justice, instead of as Chief Justice? I doubt, and he’s not overly popular with the progressive activists anyway.

        I wouldn’t be the least bit surprised if Biden’s first selection were Stacey Abrams.

        1. “I wouldn’t be the least bit surprised if Biden’s first selection were Stacey Abrams.”

          Speaking of craziest kooks…

          It’ll likely be a ‘Womyn of Colour’, from some top 25 law school faculty, and to the left of Jiang Qing.

      3. Bigoted asshole is totally without self-awareness.

    2. If the Heels Up/Feels Up ticket prevails, expect to see a massive escalation of the civil war the progs started after George Floyd was murdered. It will make the current multi city democrat insurrection look like a backyard barbecue.

  8. All we can know for sure is that no one will ask him as candidate to produce a list of 25 possible candidates.
    Any more than they will ask Kop Kamala if she will accept the results of the election.

  9. No SCOTUS since FDR has ever been a puppet of the POTUS. If there’s one thing Supreme Court Justices like to do is astonish the press by wandering off their assigned reservation. Unless the goons the Capital Building and that residence around the corner, once confirmed they never have to politic again. That greatly changes the dynamic. They don’t care about arousing the anger of the central committees. Media (and presidents, congressdorks, etc) don’t understand that.

    The job of a justice is to judge the case at hand, not to be carrying a Party Playbook with them. Even Sotomeyer (wise latinx) has been reasonable for many of her votes.

    So I’m not scared over who Biden can get confirmed, half as much as I’m scared of his VP pick.

    1. Possible, but can you name any justice, other than Byron White, appointed by a Democrat president who turned out to be more conservative than initially thought?

    2. The job of a justice is to judge the case at hand, not to be carrying a Party Playbook with them

      Interesting theory… but cant account for how the ‘independent’ judges appointed by dems always seem to vote as a block for what could be seen as the “party playbook”

  10. I like to see President Biden bypass the bench and look to an elected politician for a justice. The last justice with political experience was Sandra Day O’Connor. The value here is that the justice understands what it is like in the political area and in Congress. A point of view not experienced by any of the nine justices presently on SCOTUS.

    1. This has to be a parody account.

      1. Or an idiot.

        Fun fact – I met Sandra Day O’Connor.

      2. I don’t think so.
        Pretty sure we’re dealing with a pretentious adolescent; a real product of the government schools, and unaware of how poorly educated that leaves someone.

    2. She was an awful Justice, who never seemed to figure out two things: First, you sit on that Court in order to make a decision that a gazillion lower courts and litigants can follow. Not to pull some balancing test out of your ass that anyone could interpret anyway they want. Or to issue a bunch of plurality opinions.

      Make a damned decision that five of you can sign onto already.

      Second, you sit on the United States Supreme Court. Not the World Court. Not one of the European Union’s courts. We don’t care how they do it there. If it’s a matter of first impression, and the foreign court runs things in a similar manner (thinking of citing a UK court on Admiralty or the like), then sure, use it as an advisory opinion. Using it to inform the Court’s interpretation of capital punishment? Idiotic and wrong.

      Just a bad pick by Reagan.

  11. Somehow a Pod Saves America youtube podcast got into my feed. It was like seven woke white kids extolling the virtue of Kamala Harris. They’re genuinely excited by her.

    1. White kids extolling the virtues of a woman who made her reputation throwing enormous numbers of black people in prison with little regard to their actual guilt in name of racial justice is very 2020. It is right up there with the mob of white people who tried to burn down the black woman Seattle police chief’s home.

      1. Rich kids taking things that don’t belong to them pretty much describe every conflict in history, regardless of race.

      2. You want to throw more black people in prison, John.

        1. John isn’t advocating for voting for Kamala Harris. Who did throw blacks in jail but also tried to ignore the 13th Amendment as well.

          I know, DEMOCRAT USING SLAVERY is such an unusual thing…

  12. never gonna fucking happen but for giggles my money’s on O

  13. Noted scholar and legal commentator Dr. Angela Davis.

  14. The first priority for Harris will probably be checking enough “intersectional” boxes. Although if she does that well enough they can count on the resulting candidate to be sufficiently Marxist for their taste.

  15. A Biden SCOTUS pick might also be eager to eschew stare decisis in favor of overturning recent “conservative” precedents, such as … its First Amendment ruling in Citizens United v. Federal Election Commission (2010).

    joebiden.com:

    Introduce a constitutional amendment to entirely eliminate private dollars from our federal elections. Biden believes it is long past time to end the influence of private dollars in our federal elections. As president, Biden will fight for a constitutional amendment that will require candidates for federal office to solely fund their campaigns with public dollars, and prevent outside spending from distorting the election process. This amendment will do far more than just overturn Citizens United: it will return our democracy to the people and away from the corporate interests that seek to distort it.

    Joe Biden wants to enact censorship. Joe Biden is an attack on our democracy and a constitutional crisis all in one.

    1. How will Biden’s “private dollars” ban apply to “in kind” donations from various media organs in the form of editorial endorsements?

  16. Without control of the Senate, a President Biden or Harris won’t be putting anyone on the Court. A Republican Senate would have no reason to confirm anyone nominated by a Democratic President. The Democrats would scream bloody murder but so what? The screamed bloody murder when the Senate refused to confirm Obama’s last nominee. And the public didn’t care. They wouldn’t care this time either.

  17. If history is to be believed then Biden, like all progressive polititions, will appoint a judge that rules with whatever the progressives want at the time.

  18. Some Democrats might like to see Biden avenge past wrongs by re-nominating federal Judge Merrick Garland to the Supreme Court.

    Given his cognitive state, he’s just as likely to nominate Judy Garland to the USSC.

    1. She had nice hair.

  19. “If Biden wants to make criminal justice reformers happy”

    I think his VP pick proves he gives zero fucks about criminal justice reform. She’s *exactly* the VP pick that neuters the BLM movement. “Black families tell me they want stronger laws and more policing in order to keep them safe.”

  20. another unqualified hack like Sonya

    1. Wise Latina has been at least somewhat decent on the 4th. Kagan is the unqualified hack. Somebody on here said it once and I’m sure it’s true. That bitch burns a copy of the Constitution every day. And she sure hasn’t actually read it.

      1. What qualification are they lacking? Didn’t rape enough drunk girls in college?

        1. What justice did that?

          And give me your sources, so we can pursue justice for those poor coeds together.

          TOGETHER, Tony. Because, like you, I wouldn’t accuse somebody of rape for purely political motives.

          Hey, do you believe Biden’s accusers? Kamala does. But she’s OK with a few bitches being assaulted if she moves up the ladder.

  21. For criminal justice issues, what the Supreme Court needs and almost certainly won’t get no matter who wins in November is a justice who has experience serving as a public defender.

    1. LOL. Are there even District Court Judges with that prior experience?

      Agreed though, the judiciary has needed defense bar blood in it for a really long time. Somebody with some practical experience about the sharp end of the Executive Branch. Sotomayor, provided she sticks to crim procedure issues, isn’t bad.

      1. “Are there even District Court Judges with that prior experience?”

        Probably not, but there is no requirement that Supreme Court nominees have prior judicial experience.

  22. A pulse. Okay, 60/40.

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  24. Why are we still pretending that Biden is mentally competent and will actually be serving as President?

    1. Because Orange Man Bad.

      If we don’t pretend that Biden is mentally competent, Orange Man wins re-election.

  25. Be afraid.
    Be very afraid.

  26. Trump put up a list of judges he might potentially nominate to the Supreme Court, letting everyone check their records for themselves (and giving the Dems a ‘heads-up’ to being opposition research). Will Biden do the same?

  27. If the Senate stays Republican, he won’t get anyone appointed. They will let that seat or those seats stay empty, I will bet you money.

    1. That’s ok. The democrats never choose good justices. They’re the last people who should interpret the constitution of a limited government.

      1. Yet you’re the one advocating for shedding the part of the constitution about how presidents appoint justices. Nothing in there about only Republican presidents.

        1. The constitution says whatever SCOTUS says it says. Who are you to say it doesn’t?

          Just assume the senate insists on appointing only justices that see things there way. Now it’s totally good, right?

          Or are you about to become some strict constructionist of some other thing you find hideous?

  28. RE: “Some Democrats might like to see Biden avenge past wrongs by re-nominating federal Judge Merrick Garland to the Supreme Court.”

    My god, no. No one vanilla like that. Let him appoint an extreme progressive activist, a counter part to Clarence Thomas (but, hopefully, someone who has better taste in porn than Thomas).

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  30. funny! that wide eyed optimism that he might get elected. his pick will have all the mandatory qualifications a “progressive” jurist should have. lots of melanin, a vagina (aftermarket okay for the trannies…as long as you got one), a twitter account and a strong tendency to believe you know what is best for all of us, because we just need their help to get woke. groan

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  34. But Merrick garland is such a profoundly gay name…

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