While Biden himself was silent publicly, his campaign was laying plans to shift the focus of the looming Supreme Court nomination fight toward a referendum on the Affordable Care Act, according to his advisers. The high court is scheduled to hear the fate of Obamacare after the election.
Against that backdrop Saturday, President Trump’s campaign and even some Democrats demanded that Biden release his own list of potential court nominees — which Biden has steadfastly refused to do. Nor has Biden addressed the mounting pressure in his party to take a position on abolishing the Senate filibuster or packing the U.S. Supreme Court if Senate Republicans confirm Trump’s nominee before Inauguration Day. Biden has opposed ending the filibuster outright and court-packing in the past, though in July he expressed an openness to consider eliminating the filibuster.
“That’s sort of a wasted conversation because that concedes defeat right now. And the last thing we should be doing is analyzing how we’re going to recover from this loss,” said Hilary Rosen, an outside Biden campaign adviser and vice president at the SKDKnickerbocker firm, where top Biden adviser Anita Dunn is managing partner.
“Today is an RBG-fired engine. There’s nothing Joe Biden can say today to fire us up more,” Rosen said, adding that Biden also paused from publicly campaigning out of respect for Ginsburg’s passing.
As evidence of that Democratic intensity, online donors smashed the one-day fundraising record after the justice’s death.
But there are limits to how long Biden can remain silent about ending the filibuster altogether, court packing or his own shortlist, especially with the first of three presidential debates taking place in 10 days.
What Biden doesn’t want to do, his advisers say, is get sucked into a Twitter-fueled game of escalation with Trump and change the focus too much from the core issues of a campaign where Biden has the advantage.
“We still think this election is a referendum on Trump. It’s about Covid and healthcare and the economy and people’s lives,” an adviser said. “This is not the fight we wanted to have, but we’ll win it. So yes, we’ll have to talk about this more than we planned. We’ll have to do ads.”
Democrats can rely on a network of abortion-rights and women’s groups — some of which came into their own after the 2018 confirmation hearings of Justice Brett Kavanaugh — to counteract the pressure from the right, where white evangelicals have long exercised power in nomination fights.
“This is going to fire up young women under 40; they care about their right to choose,” Biden’s adviser said, acknowledging that there had been some “soft” support in polls for the Democrat among younger voters.
But Biden will also be forced to contend with forceful demands within his own party that he’ll need to navigate. On Saturday, Senate Minority Leader Chuck Schumer warned of retaliation if Senate Majority Leader Mitch McConnell moved ahead with Trump’s nomination in light of the Republican Senate’s refusal to hear President Obama’s nominee in 2016. McConnell has vowed to hold a vote on Ginsburg replacement, though he hasn’t specified the timing.
“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table,” Schumer said, according to a source.
Schumer didn’t specify what the retribution would be if Biden won the presidency or if Democrats captured the Senate in November, but there’s a growing movement not just to end the filibuster and pack the courts, but to pack the Senate as well by granting Washington D.C. and Puerto Rico statehood, all but guaranteeing four more Democratic senators.
A career senator before his selection as Obama’s vice president, Biden is an institutionalist who has long resisted calls for far-reaching changes to the chamber and, especially, the U.S. Constitution. Biden declined Friday night to discuss court-packing when a reporter shouted a question at him after he read a statement about Ginsburg’s passing.
The pressure to respond forcefully — or recalibrate some of his positions — will run counter to the practices and instincts that have served Biden’s campaign well so far in a campaign in which he’s been subjected to non-stop criticism that he’s too slow to react, doing too little or not saying enough.
Exactly one year ago, Biden ignored critics who said he had to instantly call for President Trump’s impeachment after the president admitted he asked Ukraine to open an investigation into his Democratic rival and his son. Biden, instead, let the House lead as he slowly ratcheted up the pressure and called for impeachment a month later.
Biden’s campaign similarly ignored calls that he wasn’t traveling enough before Super Tuesday, only to see him dominate. He also proved doubters wrong by sheltering in place when the coronavirus first hit rather than hitting the campaign trail more aggressively, a criticism that’s resurfaced in the campaign’s closing weeks.
“The proof right now in Biden’s strategy is in the polling,” said Lee Miringoff, pollster with Marist College, whose surveys have shown Biden generally leading in battleground states and nationally.
“I’m assuming that if Biden keeps it up the way he has, the numbers don’t change much right now,” Miringoff said. “I don’t think they will as a result of Ginsburg’s passing because if you look at everything — from impeachment to coronavirus to the protests — the race hasn’t fundamentally changed.”
The effect of Ginsburg’s death, Miringoff said, could be on turnout, which he expects will be heavy on both sides. He said the debates could prove crucial for that small sliver of undecided voters.
Neil Newhouse, a veteran Republican pollster and founder of Public Opinion Strategies, said of Biden that the debates “should help smoke him out” and force him to weigh in more on issues he might want to avoid, like Supreme Court-packing.
But as of now, he said, it’s hard to criticize Biden’s go-slow, say-less approach.
“It’s played to his advantage so far. It’s like the Trump campaign is shadow boxing right now; they’re trying to hit him but he’s kind of not out there.”