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Missed opportunity? Biden and Democrats downplay courts on campaign trail

Washington Examiner logo Washington Examiner 9/28/2022 Naomi Lim
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President Joe Biden is outpacing former President Donald Trump when it comes to federal judicial appointments, but you would not know it from the White House or Democrats on the campaign trail.

Biden and Democrats have seized on the Supreme Court and the possible consequences of Justice Clarence Thomas's Dobbs v. Jackson Women's Health Organization concurring opinion on issues other than abortion access. But unlike Republicans, Biden and his party have not made a clear, direct link between the lower courts, November's midterm elections, and the need to hold on to their Senate majority so they can confirm more judicial nominees.


For one Republican operative, Democrats' strategy is predicated on past experience when the party has concentrated on the courts, and it has not created the same momentum as it has for conservatives.

"In 2016, Republicans won the White House knowing a SCOTUS seat was on the line," the aide, who wished to remain anonymous, said, using a Supreme Court acronym to describe then-Senate Majority Leader Mitch McConnell's (R-KY) refusal to consider now-Attorney General Merrick Garland for the bench.

"In 2018, Republicans won key Senate races after Democrats opposed Justice [Brett] Kavanaugh," the staffer added of the sexual misconduct allegations leveled against the justice. "Nothing will change this cycle, as Democrats have proven to be out of touch with the concerns of voters."

Political analyst Bertram Johnson attributed Republican success with their courts tactic to the passage of time. He contended they "built it up for years and years," boosted by Roe v. Wade and anti-abortion advocates, contributing to it becoming a reason some conservatives overlooked Trump's shortcomings.

"Democrats have less history among party regulars and activists of seeing judicial appointments as a prime concern," the Middlebury College politics professor said. "The path of least resistance is therefore to focus on individual candidates’ records on the abortion issue rather than systemic concerns with the judiciary, which for most voters may seem more abstract."

But the courts' omission from Biden and Democrats' 2022 messaging is notable given they have, on average, a less than a percentage point advantage on generic congressional ballot polling before November, according to RealClearPolitics.

The Senate's confirmation of U.S. District Judge Florence Pan last week to replace Supreme Court Justice Ketanji Brown Jackson on the U.S. Court of Appeals for the District of Columbia Circuit means Biden has appointed 83 judges during the first 20 months of his administration. In contrast, Trump and McConnell had installed 69 nominees by September 2018.

Biden did mention judicial appointments during his first Democratic National Committee fundraiser of the season, but it has not become a permanent component of his stump speech. And even then, he underscored the diversity of his nominees rather than the number.

"I've been able to appoint more — more judges who are appellate court judges in the federal court who are African American women than all other presidents combined in American history," he said in Maryland last month. "I made a commitment," he added, alluding to his 2020 pledge that elevated Jackson to the Supreme Court.

Then last week, during another fundraiser, Biden did connect the contests in six weeks to the second half of his first term, though he did not explicitly reference the courts.

"My generic point is this is a really important off-year election," he said in New York. "If we lose the House and lose the Senate, it’s going to be a really difficult two years. I'll be spending more time on the veto pen than being able to get anything done."

Meanwhile, Biden and Democrats have amplified a succession of state court decisions on abortion access after Dobbs — most recently, Arizona's near-total ban — and Thomas's positions regarding contraceptives, gay relationships, and same-sex marriage. The Cook Political Report updated its Arizona rating last week from toss-up to leaning toward Democratic Sen. Mark Kelly as the incumbent averages a 6-point lead on Republican venture capitalist Blake Masters amid the abortion debate.


"Make no mistake: this backwards decision exemplifies the disturbing trend across the country of Republican officials at the local and national level dead-set on stripping women of their rights, including through Sen. Graham’s proposed national abortion ban," White House press secretary Karine Jean-Pierre wrote in a statement last week of Arizona. "The contrast between the president and his focus on moving the country forward and Republican officials’ obsession with taking our country backwards could not be more stark."


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Tags: Joe Biden, Supreme Court, Midterms 2022, Roe v. Wade, Dobbs v. Jackson Women's Health Organization

Original Author: Naomi Lim

Original Location: Missed opportunity? Biden and Democrats downplay courts on campaign trail


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