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Liberals Are Furious About The Supreme Court. Joe Biden Wants to Hold Back

Liberals believe the Supreme Court and the election are being stolen before Americans’ eyes. President Trump is openly saying that he needs nine justices on the court in case any voting disputes end up there. Senate Republicans are playing hardball to speedily confirm that ninth justice. And, to boot, Mr. Trump won’t even commit to a peaceful transfer of power if he loses.

And then there’s Joseph R. Biden Jr.

At a time when furious Democrats crave retribution, Mr. Biden is appealing to the “conscience” and the “hearts” of Senate Republicans.

“I have great respect for a number of my former Republican colleagues, and I’m hoping they will do the right thing,” he said on Sunday, pleading with them to “de-escalate.”

In the middle of the most bitter election season in decades, Mr. Biden is cautiously wading into the highest-stakes Supreme Court battle of his nearly half-century in politics. He’s sticking to his message of bipartisan comity and national unity, dodging questions from liberal allies and tempering his critiques of conservative opponents, on an issue on which polling shows a majority of voters siding with Democrats.

Mr. Biden is unlikely to escape the nomination fight so easily this week, when the court will become a major focus of the first presidential debate. The televised matchup on Tuesday night will be the highest-profile event of the campaign, a crucial opportunity for Mr. Biden to both mobilize Democrats and sway undecided voters.

During a campaign in which a majority of voters see the very future of American democracy at stake, Mr. Biden’s restraint is a political gamble.

Aides and advisers say that Mr. Biden is as angry about the Republican effort to push through a nominee as anyone in his party, but that he sees a disciplined approach, centered on the impact of the court on health care, as his best chance of swaying swing voters who are tired of political divisiveness and focused on the coronavirus pandemic.

But many Democrats believe the fight to replace Justice Ruth Bader Ginsburg, a liberal hero, carries political potency with the party’s voters, particularly among a base eager to see Mr. Biden forcefully challenge Mr. Trump. In the hours after Ms. Ginsburg’s death this month, Democrats broke records for political giving, raising the possibility of juicing party turnout as voters begin casting ballots early in person and by mail.

Privately, Democrats say they have little hope of stopping the confirmation of Mr. Trump’s nominee, Judge Amy Coney Barrett, before Election Day. Some strategists worry that the party’s attacks on her could ricochet against them in the election and, instead, are urging their activists to remember the need to drive Democratic voters to the polls.

An expanded conservative majority on the court would most likely pose an existential threat to abortion rights, legislation that addresses climate change and gun control — issues that energize the younger voters, progressives and women who make up the core of the Democratic Party.

“The majority is going to make this decision, and they’re pretty clear about where they’re headed,” said Senator Jeff Merkley, Democrat of Oregon and the Senate’s chief supporter of ending the filibuster, one of the proposals pushed by the party’s liberal wing in the wake of Ms. Ginsburg’s death. “This whole situation with the court intensifies the understanding of how much the November election matters.”

Yet at times, Mr. Biden has seemed to be little more than a bystander in a battle that could not only reshape the federal judiciary for a generation but also hamper his ability to carry out his agenda if he wins the White House.

As Democrats mourned and protested last week, Mr. Biden stuck to his schedule of limited public appearances. His deep expertise in confirmations has largely gone unmentioned, as has significant discussion of the impact of the court on issues like climate change and gun rights. And he has refused to comment on Judge Barrett or proposals championed by progressives to expand the court, dismissing those questions as distractions that play into Mr. Trump’s hands.

“Let me tell you why I’m not going answer that question,” Mr. Biden said in an interview last week with a Wisconsin television station. “Because it would shift all the focus. That’s what he wants. He never wants to talk about the issue at hand.”

Aides say Mr. Biden is not shying away from discussing the court fight, pointing to two speeches he has given that were focused on the court. Senator Kamala Harris of California addressed the issue in Monday remarks, as well, warning that health coverage and abortion rights were in danger.

Andrew Bates, a Biden campaign spokesman, said, “Joe Biden has sounded the alarm about the harrowing stakes for American families in this hypocritical, divisive power grab.”

Mr. Trump has shown none of his opponent’s hesitation.

“Biden and the Democrats are desperate to distract from the real issues, which is that their party has been taken over by socialists, extremists and probably communists,” Mr. Trump said of Democrats during a Sunday evening news conference. “If they win, they will nominate justices who will destroy the American way of life and the American dream.”

Biden allies cite the Republicans’ desire to shift the narrative away from damaging topics for their party, like the president’s handling of the pandemic, as part of the political rationale for Mr. Biden’s measured tone around the contentious issue. They’ve staked much of their campaign on the virus, believing that voters will punish the president for failing to lead an aggressive national response to the health crisis.

While highly engaged Democrats may be focused on the court, Biden allies maintain that the Senate fight doesn’t resonate as much with independent voters, who remain far more worried about the economy and the coronavirus. Those voters, the allies say, are tired of partisan warfare in Washington and could be repelled if Mr. Biden took a more aggressive approach against his Republican opponents.

“In places like Wisconsin, what you talk about is Covid — the fact that people still can’t go to a fish fry with their neighbors and friends,” said Representative Mark Pocan, a Wisconsin Democrat. “It’s Covid and everything around Covid that gets talked about the most. I think Biden is still wisest talking about that.”

A memo released last week by Priorities USA, one of the party’s biggest super PACs, urged Democrats to keep their focus on health care, sticking with the successful playbook that helped power the party’s takeover of the House in 2018.

“I want to make it clear and stay on message here,” Mr. Biden said on Sunday when asked about the consequences that Senate Republicans should face if they confirmed Judge Barrett. “The clear focus is, this is about your health care.”

Democratic former senators say that Mr. Biden is better leaving the unpredictable dynamics of a confirmation battle to current elected officials in Washington. Some strategists quietly worry about raising expectations among Democratic voters, fearing that the all-but-inevitable failure of their efforts to stop the nomination could demoralize the party’s base in the middle of voting. From a practical standpoint, a sweeping set of changes from Facebook that included banning new political advertising in the final week of the election may limit the issue’s potency as a fund-raising and motivational tool, given that the final confirmation vote is unlikely to happen before late October.

“The Senate is tied in knots and having a big fight, as they should,” said Barbara Boxer, a Democratic former senator from California and a Biden ally. “I don’t think it’s smart for Joe Biden to get in the middle of that mess.”

Ms. Boxer argued that Democrats were already energized before the death of Justice Ginsburg, leaving Mr. Biden little to gain by wading into the fight.

“The people who are mobilizing now were mobilized before because they understood what’s at stake in the court,” she said. “What a presidential candidate today has to talk about is the suffering that’s going on in America today.”

But presidential candidates rarely miss an opportunity to energize their base, particularly in the final weeks of a campaign with early voting already underway. If Mr. Biden loses in November, much of the Monday morning quarterbacking will almost certainly revolve around whether he worked hard enough to energize his supporters with an affirmative case for his candidacy.

For Mr. Biden, some of the caution stems from his personal beliefs.

A Catholic, Mr. Biden has struggled to reconcile his religious views with the views of his party, which has embraced an abortion rights platform with fewer restrictions than at any time in its political history. While he has mentioned “women’s rights” in passing, Mr. Biden has not devoted significant attention to the issue, even as the likely confirmation of Judge Barrett creates a conservative bloc on the court that threatens to end the constitutional right to an abortion.

A lion of the Senate, who spent decades of his career extolling the arcane rules and old-fashioned customs of the institution, Mr. Biden remains uncomfortable with overtly politicized court battles and the prospect of fundamentally reshaping the body in ways progressives would like to see.

Some progressives say they don’t need Mr. Biden to help champion changes like ending the filibuster, expanding the court or eliminating the Electoral College — at least not right now.

After months of watching his campaign, progressive Democrats don’t expect Mr. Biden to lead the fight for their reforms, said Maurice Mitchell, the national director of the Working Families Party. They just need him to defeat Mr. Trump.

“The base is rallying itself,” he said. “Movements are leading and politicians are responding.”

Mondaire Jones, a progressive House candidate expected to win in New York this fall, argues that Mr. Biden will have little choice but to embrace some of these proposals should he win the White House, whether he’s inclined to support them or not.

“He’ll understand, if nothing else, that the big-ticket items that he ran on are in peril of being struck down by a rogue Supreme Court,” said Mr. Jones, who made expanding the number of justices central to his primary bid. “I don’t think anyone wants to be ineffectual as a chief executive.”

Reid J. Epstein contributed reporting.

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