Kobach: Biden Wants Voters to Decide Supreme Court But Keeps List a Mystery

Democratic presidential candidate, former Vice President Joe Biden arrives to speak with families who have benefited from the Affordable Care Act, Thursday, June 25, 2020, in Lancaster, Pa. (AP Photo/Matt Slocum)
AP Photo/Matt Slocum

Joe Biden has consistently refused to release a list or any information about whom he might appoint to the Supreme Court if he were president. During his first debate with President Trump on Tuesday, he once again refused to do so when prodded by President Trump.

However, Biden (and the mainstream media) seem unaware that Biden’s refusal to disclose potential judicial picks contradicts his repeated demand that the Senate not proceed on the Amy Coney Barrett nomination. As Biden said during the debate: “The issue is the American people should speak. You’re voting now. Vote, and let your senators know how you feel.”

On Wednesday, he reiterated the point during a Pittsburgh radio interview:  “Right now, my entire focus is seeing to it that the American people get a chance – the election has already started – to have their say on who the next Supreme Court justice is. And that’s what I’m focused on.”

Why are the positions inconsistent? Because Biden’s insistence that the vacancy on the Supreme Court should not be filled until after the election is based on the premise that American voters should be allowed to decide which candidate’s Supreme Court nominees they prefer.

But in the same breath, Biden refuses to tell American voters anything about who his nominees might be. Consequently, no voter can be sure what a potential Biden nominee to the high court might look like. And no voter can compare a potential Biden nominee to a potential Trump nominee.

So which is it? Do the people deserve a chance to evaluate a president’s potential judicial nominees with clarity or not? I think they do. 

Indeed that’s almost certainly what millions of voters thought too, during the 2016 election, when so many cast their vote for Trump in the hope that new Supreme Court justices would come from his publicly-disclosed list. Their votes were cast for a specific reason, and their votes give political force to any nomination President Trump makes from that list during his first term in office.

The public now has a very clear picture concerning President Trump’s nominees to the Supreme Court. They have seen Gorsuch and Kavanaugh in action, and they have been informed that Amy Coney Barrett is next in line. And President Trump has once again promised that future nominees will come from his list.

The public has no such picture concerning potential Biden nominees. It’s time for Biden to be consistent with his own words and stop hiding his intentions regarding the high court.

Kris W. Kobach is an expert in immigration law and election fraud.  He was a professor of constitutional law during 1996-2011 at the University of Missouri-KC and served as counsel to U.S. Attorney General John Ashcroft during 2001-2003.  He was the Secretary of State of Kansas during 2011-2019.


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