Joe Biden either believes the premises of his campaign for the presidency, or he does not. Either way, the death of Supreme Court Justice Ruth Bader Ginsburg on Friday gives him an opportunity, as surely as it gives America occasion to mourn a legal giant.
Most people know the stakes: Ginsburg’s death gives President Donald Trump one last chance to name a Justice before an election he’s likely to lose. It gives Republicans one last chance to cement a majority on the court. Which they want desperately, having lost the popular vote in six of the last seven presidential elections. With an electorate now too diverse, educated and liberal on social issues to put many Republicans in the White House, they likely won’t choose another soon.
So, Trump will nominate someone before the election, and the GOP-controlled Senate will try to confirm them before giving way to a newly-elected — likely Democrat-controlled — Senate in January. Biden can seize the initiative from Trump by announcing his own shadow nominee so voters can choose. And that nominee should be former Georgia legislator and gubernatorial candidate Stacey Abrams.
The premises of Biden’s campaign boil down to two. The policy premise is that laws should serve everyone, not just the privileged. That matches Ginsburg’s legacy of equal protection precedents, which enshrined in American life the once-radical notion that women are people. The political premise is that demographic change during Biden’s career — America is browner, more equal between races, and women are twice as likely to have college degrees as in 1980 — has made America more open to the court as Biden would shape it.
Nominating Abrams lets Biden highlight the biggest constitutional mistake the Court has made under Chief Justice John Roberts — the narrowing of voting rights, which Republican legislators across America have seized upon to try to stop blacks from voting.
Few things in this election would serve Biden better than putting the right to vote — for everyone — front and center. Oddly, for a democracy, voting rights are popular. Abrams, after her narrow loss in a 2018 gubernatorial race she blames on the GOP’s purging 500,000 voters from the rolls, is a walking symbol of the fight against ballot-access shenanigans Trump and other Republicans have embraced. She now runs a non-profit to fight the voter suppression tactics Roberts’ Court blessed in 2013 — which Ginsburg’s dissent said was “like throwing away your umbrella in a rainstorm because you’re not getting wet.”
The threshold act of being human in a democracy is having the unquestioned right to vote. One party wants a one-person, one-vote system, period. The other sells pettifogging that somehow always ends in one side trying to keep the voting pool small and white.
That’s a fight Biden wins. So he should provoke it. Nothing provokes it better than Justice Abrams, who would fulfill Biden’s promise to name a Black woman to his first Court vacancy. The shadow nomination also would put abortion rights even more squarely on the ballot — in the view of proponents, reproductive rights also affirm the basic humanity of women.
Recent Democratic presidents have usually made their Supreme Court nominations as cautious and vanilla as possible, avoiding culture-war fights they feared losing. Even Ginsburg was seen as a moderate when appointed in 1993. But the culture’s different now.
So, Mr Biden, be bold. Biden’s promise to pick a Black woman all but precludes the usual path of tapping a federal appellate judge for the Court, so he has to be unconventional. No Black woman US Circuit Court judge is younger than 67. The 46-year-old Abrams’ background as a state legislator and Yale Law graduate is little different than that of former Justice Sandra Day O’Connor — a Stanford-trained lawyer and former state legislator who was a state-court judge when Ronald Reagan nominated her.
Sometimes the best Justices are precisely those who aren’t experienced judges. Name one who changed the world more than Chief Justice Earl Warren, a ex-Governor of California.
For Biden, whose whole argument is that he understands real people’s lives better than the trust-fund-cosseted Trump, there’s no more tangible way to prove it than disclosing his own real-world Supreme Court pick right after Trump.
The president will pick from potential nominees vetted largely by the Federalist Society, which preaches judicial restraint but practices right-wing judicial activism. His choice will surely pleases either or both of the GOP’s corporate-donor wing and evangelical base. Neither represents America.
Biden can pick from America, and for American values like democracy and equal protection. Voters will see the difference — and like it. And tying Biden’s likely victory to the Court pick is the best way to stop an anti-democratic GOP’s drive to ignore the people and stack the court.