Democrats Demand An Activist Supreme Court Nominee

Following Up On President Biden’s Pledge To Appoint A Supreme Court Justice Who Will ‘Have An Expansive View Of The Constitution,’ Democrats In Congress Are Signaling That They Want The President To Pick A Nominee Who Will ‘Reason Backward From Outcomes’ And Advance Political Causes For Democrats, Instead Of Following What The Law Says

SENATE REPUBLICAN LEADER MITCH McCONNELL (R-KY): “[S]omehow, everyone knows in advance that nominations like Bork, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are certain to whip up national frenzies... while nominations like Ginsburg, Breyer, Sotomayor, and Kagan are calm events by comparison. This blaring asymmetry predates our recent disputes. And it comes, my colleagues, from a fundamental disagreement on the role of a judge in our republic. We just have a fundamental difference of opinion. We just heard the Democratic Leader name all of these things that are threatened by this nominee. It sounds very similar to the tunes we’ve heard before. We, like many Americans, want judges to fulfill a limited role the Constitution assigns to them: Stick to text, resolve cases impartially, and leave policymaking to the people and their representatives, which is what we do here…. But the left thinks the framers of our country got this all wrong. They botched the job. The people who wrote the Constitution didn’t understand what a judge ought to be. As several Senate Democrats have reaffirmed in recent days, they find it quaint and naive to think a judge would simply follow the law…. What they want is activist judges. They’ve made it quite clear…. So what they are looking for is a small panel of lawyers with elite educations to reason backward from outcomes and enlighten all the rest of us with their morals and political judgment. Whether the Constitution speaks to the issue or not. They know best what’s for us. No matter what the Constitution or the law may say.” (Sen. McConnell, Remarks, 10/26/2020)


During His Presidential Campaign, Joe Biden Said He Would Appoint Supreme Court Justices ‘Who Have A View Of The Constitution As A Living Document’ And ‘Have An Expansive View Of The Constitution’

JOE BIDEN: “The people that I would appoint to the Court are people who have a view of the Constitution as a living document, not as a staid document.” (Joe Biden, Remarks At Iowa Campaign Event, Washington, IA, 12/28/2019)

The New York Times’ NICK FOX: “I was kind of curious what kind of person? What are you looking for in the Supreme Court?”
JOE BIDEN:They have to have an expansive view of the Constitution. Recognize the right to privacy, unenumerated rights that exist in the Constitution. Not the Federalist Society view that if it’s not listed, it doesn’t exist. And they have to be, they acknowledge the unenumerated rights and a right to privacy in the Constitution, and the ‘penumbra’ [laws] and the Ninth Amendment, then in fact that means I know they will in fact support Roe v. Wade. They’ll support a woman’s right to choose and a whole range of other things that relate to individual personal rights. That is critical. I’ve written about it extensively. I’ve written law review articles about it.” (Interview with The New York Times Editorial Board, 1/17/2020)


Biden Also Agreed That He’d Have A Litmus Test On Abortion And That His Appointee Would Have A Philosophy That ‘Would Support Roe v. Wade’

ABC’s DAVID MUIR: “Would there be a litmus test on abortion?”
JOE BIDEN: “Yes. Look, here’s the deal. Litmus test on abortion relates to the fundamental value of the Constitution. A woman does have a right to choose. I would in fact, if they rule it to be unconstitutional, I will send to the United States Congress and it will pass, I believe, a bill that… Excuse me, legislates Roe V. Wade adjusted by Casey. It’s a woman’s right to do that. Period. And if you call that a litmus test it’s a litmus test …” (Democratic Presidential Debate, Manchester, NH, 2/07/2020)

JOE BIDEN: “I would not appoint anyone who did not understand that Section 5 of the 14th Amendment and the Liberty Clause of the 14th Amendment provided a right to privacy. That’s the question I’d ask them. If that is answered correctly, that that is the case, then it answers the question, which means they would support Roe v. Wade.” (Democratic Presidential Debate, Las Vegas, NV, 11/15/2007)


Congressional Democrats Say They Want A Supreme Court Justice Who Will Not Just Make Decisions Based On The Law, But Will Be Thinking About ‘Impact,’ Power Dynamics, And ‘Needs’ With ‘An Established Record Of Working To Advance Racial Justice And Eradicating Entrenched White Supremacy’

SEN. MAZIE HIRONO (D-HI), Senate Judiciary Committee Member: “I’m looking for someone who’s going to be not only highly qualified, as all of the people that you already talked about are, but who really brings to the judiciary the kind of diversity that I’d like, that -- someone who will consider the impact, the effects of whatever decision-making is on people in our country, so that they’re not making decisions just based on, which I would like them to base it on, law, which would be nice, and precedent, and who are not eagerly trying to get rid of decades of precedent that would protect a woman’s right to choose, for example, and voting rights, etc.” (MSNBC. 1/26/2022)

SEN. BERNIE SANDERS (I-VT): “You want somebody who is going to be reflective of the needs of working families and understands that we are moving towards an oligarchy in this country.” (“Left Splits Over Supreme Court Pick Pushed By Top Biden Ally,” Politico, 2/09/2022)

14 HOUSE DEMOCRATS: “The appointment of a Black woman justice with an established record of working to advance racial justice and eradicating entrenched white supremacy is of the utmost importance in reviving the Supreme Court’s credibility.” (“Black Female Lawmakers Call On Biden To Pick Supreme Court Nominee Committed To Civil Rights,” ABC News, 2/10/2022)



Related Issues: Supreme Court, Judicial Nominations