Politics

Biden says he won't divulge position on court packing until after election

U.S. Democratic presidential candidate Joe Biden speaks to reporters as he departs Wilmington, Delaware, October 8, 2020.
Kevin Lamarque | Reuters

Joe Biden on Thursday said he is withholding his position on the pivotal issue of expanding the Supreme Court until after Election Day, telling reporters that, "you'll know my opinion on court-packing the minute the election is over."

The statement, made to reporters in Arizona ahead of a campaign event, sowed additional confusion on where the Democratic presidential nominee stands on the possibility of growing the size of the Supreme Court beyond its current bench of nine justices.

Biden said in July that he opposed any efforts to expand the size of the Supreme Court, but has backed away from having a clear position on the matter in the weeks since the mid-September death of Ruth Bader Ginsburg.

During the first presidential debate on Sept. 29, Biden refused to answer a question about court packing, telling moderator Chris Wallace, "Whatever position I take in that, that'll become the issue."

He also told a Wisconsin television station last month that "it's a legitimate question" but that he was "not going to answer" it.

Biden's position on the issue has come under increased scrutiny since Ginsburg's death. Senate Republicans have vowed to speed through the confirmation hearings of President Donald Trump's high court nominee, Amy Coney Barrett — marking a reversal of the precedent they set in 2016, when they refused to even hold hearings for President Barack Obama's court nominee because it was an election year.

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That reversal has prompted voters within the progressive wing of the Democratic Party to urge Biden to retaliate against Republicans by packing the court if he wins the race. That can be done by passing a new law — which Democrats could possibly do if they won control of the Senate.

The issue re-emerged at the vice presidential debate on Wednesday night, with Vice President Mike Pence accusing Biden and his running mate, Sen. Kamala Harris, D-Calif., of wanting to "pack the court" if they're elected.

Harris also declined to directly provide her stance on the matter.

"The American people are voting right now, and it should be their decision about who will serve on this most important body for a lifetime," she said.

Their hesitation to embrace or reject the idea of court expansion reflects the tension between his campaign pitch to restore institutions with a return to normalcy and the outrage among Democratic voters that Trump would replace Ginsburg in the waning weeks before the election with a conservative jurist who opposes what the liberal icon stood for.