Joe Biden is expected to use the sudden Supreme Court vacancy to reinforce his argument that the upcoming election should be a referendum on President Donald Trump’s handling of health care and the coronavirus.
The death of Justice Ruth Bader Ginsburg jolted the presidential campaign just six weeks before the election and as several states are already voting. Trump has seized on the opportunity to nominate a new justice to motivate his most loyal voters. Biden hopes to keep the focus on health care, which has proven to be a winning issue for Democrats during previous elections and could be even more resonant amid the pandemic.
“So I think in that sense, the vacancy will really sharpen the focus on the stakes in this election when it comes to life and death and the health of Americans,” Sen. Tim Kaine, a Virginia Democrat who was Hillary Clinton’s 2016 running mate, said Sunday.
The Supreme Court will hear a Republican-led case challenging the Affordable Care Act, which the Trump administration supports, the week after the Nov. 3 election. Biden is expected to charge Trump is seeking to undermine the protections for people with pre-existing conditions under the ACA, as well as its provisions covering preventative care for women.
The Supreme Court could also hear cases on a few more particularly salient issue in the next few months: Voting rights, and potentially who wins the November election.
A Biden aide who spoke on condition of anonymity to describe internal conversations said Biden will focus in the next few months on the Democratic fight to prevent a nominee from being confirmed to the court, with a particular emphasis on the effect the court could have on health care and climate change. The aide said not to rule out the possibility that the campaign will advertise around the court fight, though that decision hadn’t been finalized.
Biden is still not, however, planning to release a list of potential Supreme Court nominees, because putting out a full list, the aide said, would just “further politicize” the court and the nomination process. Biden’s aides say those interested in his thinking on a justice can look to his long history as chairman of the Senate Judiciary Committee for guidance.
Their refusal to put names to Biden’s potential court pick underscores the political peril that the Supreme Court debate holds for Biden. Conservatives are still energized by the issue, and putting out names could offer Trump and his allies a list of conservative boogeymen to use against Biden to rev up his base.
Trump himself, at a rally Saturday night, basked in chants of “fill that seat” from the audience, and has pledged to move quickly on the nomination, whom he says is likely to be a woman.
Indeed, the Supreme Court has traditionally been seen as a major motivator for conservative voters, for its significance to hot-button social issues like gay rights and abortion. But in recent years, following the contentious confirmation fight over Supreme Court Justice Brett Kavanaugh and a number of high-profile rulings on the Affordable Care Act, polls suggest the issue is becoming more salient for Democrats.
A Pew Research Center poll conducted in August suggested a comparable number of Biden and Trump voters view the appointment of Supreme Court justices as “very important” to their vote.
While Biden’s aides acknowledge that the issue is still significant for conservatives, they believe it could be a winning one for their campaign, potentially driving support among undecided moderates, young voters and women, who may be energized in particular by the continued legal attacks on abortion rights.
They point to the massive fundraising numbers seen for Democrats online — $91.4 million processed through Democratic fundraising engine ActBlue from Friday night through Saturday — as further evidence of the base enthusiasm around the issue.
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