PHILADELPHIA — Joe Biden was scheduled to spend his Sunday in Delaware like he usually does, in church and at home. A last-minute addition to his schedule — a speech, delivered direct-to-camera, from an atrium overlooking Independence Hall, Philadelphia’s monument to American democracy — was the mark of a campaign moving quickly to join a fight.
Two days after the death of Justice Ruth Bader Ginsburg on Friday, news that set up an immediately grievous Supreme Court nomination battle, Biden’s party was already preparing for one. The Democratic fundraising platform ActBlue processed $100 million in donations over a period of just over 36 hours. The party’s nominee before Biden, Hillary Clinton, urged Democrats to “go down fighting” and “not give an inch.” In the Senate, Minority Leader Chuck Schumer told voters that the Supreme Court seat, if given over to a nominee from President Donald Trump, could reshape “everything Americans value.” And in the House, Speaker Nancy Pelosi presented the vacancy as a referendum on access to healthcare, a winning issue for Democrats in the 2018 election that gave the party a majority in the House for the first time in nearly a decade, and an urgent question amid the ongoing pandemic.
On Sunday, Biden’s contribution hinged on a more contained and personal appeal: not to voters but to an audience of Republican senators, his former colleagues, who now control the seat’s fate.
“Please follow your conscience,” Biden said from the National Constitution Center in Philadelphia. “Don't vote to confirm anyone nominated under the circumstances President Trump and Sen. McConnell have created. Don't go there. Uphold your constitutional duty, your conscience. Let the people speak. Cool the flames that have been engulfing our country.”
Biden, 77, served in the Senate for more than 35 years before Barack Obama asked him to serve as his vice president.
“If we go down this path, I predict it will cause irreversible damage. The infection this president has unleashed on our democracy can be fatal. Enough. Enough. Enough."
“We must come together as a nation. Democrat, Republican, Independent, liberal, conservative. Everybody.”
In this year’s presidential election, a race already marked by crisis and unrest, Biden has been a candidate sometimes contented to step back and cede his airtime to Trump, letting his opponent thrash in the glare of the latest controversy.
On Sunday, Biden inserted himself forcibly, addressing his former colleagues in the Senate, looking dead-ahead as he read from a teleprompter, as if speaking directly to the three or four Republicans who might be wavering.
“I’m not speaking to President Trump, who will do whatever he wants. I’m not speaking to Mitch McConnell, who will do what he wants and he does,” Biden said of the Republican Senate Majority Leader. “I’m speaking to those Republicans out there, Senate Republicans, who know deep down what is right for the country and consistent with the Constitution,” he said, “not what’s just for their party.”
McConnell has already said he will pursue a vote on Trump’s choice to replace Ginsburg less than 45 days from the election, despite his decision to block Obama from filling an open seat on the court in February of an election year. Biden called the McConnell’s reversal a “raw political move” that would put the country on a “dangerous path” and in a cycle of “action and reaction, anger and more anger, sorrow and frustration at the way things are.”
“We need to de-escalate, not escalate,” Biden said.
Two Senate Republicans have so far said they don’t believe a Supreme Court nominee should be confirmed before the election, Lisa Murkowski of Alaska and Susan Collins of Maine, who is in a close reelection fight. Republicans, who hold 53 Senate seats and can break a tie with Vice President Mike Pence, can only lose one more senator if Democrats remain united in opposition to a Trump nominee. The Senate confirming a new nominee would give Trump three of the nine justices, and tilt the balance of the Court further to the right, in cases that will shape untold generations.
News about Ginsburg's death broke as Biden was on a plane home to Delaware following a campaign stop in Minnesota. After landing, Biden told reporters on the tarmac that he did not expect to publish a list of the Supreme Court picks he would consider as president, something Trump did first as a candidate in 2016 and again this month. On Sunday, Biden laid out his reasoning for that decision and directed part of it explicitly to Senate Republicans.
A Supreme Court nominee, he said, should not be made “as part of a partisan election campaign” but rather “only after consulting Democrats and Republicans in the US Senate — and seeking their advice before I ask for their consent.”
Earlier in the race, Biden pledged to nominate the first black woman to the Supreme Court, a vow his campaign reiterated this weekend.
At the Constitution Center on Sunday, where he appeared with a handful of campaign aides, journalists, and US Secret Service agents, Biden did not say whether he planned to reach out to Republican senators directly. When a reporter shouted the question to him after his speech, he did not answer.
Later on Sunday afternoon, a Biden aide said Biden and his running mate, Sen. Kamala Harris, along with their respective staffs, have been in touch with Democratic leaders in the Senate and House and will be “regularly coordinating” on healthcare messaging in particular, linking the COVID-19 pandemic that has killed nearly 200,000 Americans, and Trump’s mishandling of the crisis, to a fight to preserve the kind of access afforded by Obamacare.
“If the president thinks this isn't about the coronavirus, it is. It’s about healthcare,” Pelosi said on Sunday in an interview on ABC News. “He doesn't want to crush the virus. He wants to crush the Affordable Care Act.”
The Supreme Court is scheduled to hear oral arguments on Nov. 10, one week after the presidential election, in a suit seeking to overturn the healthcare law, brought by red-state attorneys general in 20 states. The case, California v. Texas, followed a previously unsuccessful effort by Republicans in Congress to repeal the Affordable Care Act.
The Republican Party's long promise to repeal Obamacare has not, in an ongoing monthslong pandemic, been a prominent piece of Trump’s reelection effort. A repeal of the law would roll back Medicaid expansion and protections for patients with preexisting health conditions, a popular measure that could cover complications from COVID-19, Biden said on Sunday, such as lung scarring and heart damage.
Relative to the Republican Party, Democrats have never quite managed to make the Supreme Court among its most animating issues. Clinton tried in her campaign against Trump, delivering a speech in the spring of 2016 warning voters that the next president would likely get to nominate “multiple justices” and “could demolish pillars of the progressive movement” in a single term.
“It is difficult to turn that into a voting issue on our side of the political ledger,” Clinton told MSNBC’s Rachel Maddow after Ginsburg’s death. “I know that from firsthand experience.”