Joe Biden declined to answer whether he supports adding seats to the Supreme Court in the event that Republicans confirm President’s Trump nominee to replace the late Justice Ruth Bader Ginsburg, despite opposing the idea in the past.
The Democratic presidential nominee and former vice president was asked about whether he would support the move, pushed by Democrats such as Sen. Ed Markey of Massachusetts and House Judiciary Committee Chairman Jerry Nadler of New York, in an interview with local Green Bay, Wisconsin, station WBAY on Monday.
“It’s a legitimate question, but let me tell you why I’m not going to answer that question. Because it will shift all the focus, that’s what he wants,” Biden said, referring to President Trump. “He never wants to talk about the issue at hand, and he always tries to change the subject.”
Biden explained why he dodged the question, despite previously opposing court-packing and court expansion.
“Let’s say I answer that question. Then the whole debate’s going to be about what Biden said or didn’t say, Biden said he would or wouldn’t,” he said. “The discussion should be about why he is moving in a direction that’s totally inconsistent with what the founders wanted. The Constitution says — voters get to pick a president who gets to make the pick, and the Senate gets to decide. We’re in the middle of the election right now. You know people are voting now. By the time this Supreme Court hearing would be held, if they hold one, it’s estimated 30% to 40% of the American people already have voted. It is a fundamental breach of constitutional principle. It must stay on that, and it shouldn’t happen.”
Biden to @WBAY declines to answer q on adding seats to SCOTUS if GOP replaces RBG
“It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.”
“Let’s say I answer…then the whole debate’s gonna be about what Biden said or didn’t say.” pic.twitter.com/gvP6TCDPS8
— Johnny Verhovek (@JTHVerhovek) September 22, 2020
The 36-year Delaware senator and former chairman of the Senate Judiciary Committee last year expressed firm opposition to expanding the court — sometimes called court-packing. The number of justices has not changed since 1869, with the last serious attempt of expansion coming from President Franklin D. Roosevelt in the 1930s.
“No, I’m not prepared to go on and try to pack the court because we’ll live to rue that day,” Biden told Iowa Starting Line in July 2019.
He again rejected the idea in an October 2019 debate.
“I would not get into court-packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
But with rising enthusiasm to retaliate against Republicans for their court picks, Biden may face pressure to turn back on his institutionalist tendencies.
“Biden blows with the political winds and always has his whole career,” University of Chicago law professor Brian Leiter told the Washington Examiner. “Right now, Democratic anger about Republican court-packing — first by stealing a seat from the Democrats (Garland), and now, turning around and stealing another one that should go to the Democrats given the Garland precedent (assuming Biden wins) — is going through the roof.”
Last year, a number of Democratic presidential candidates, including Sens. Cory Booker of New Jersey, Amy Klobuchar of Minnesota, and Kirsten Gillibrand of New York, expressed openness to expanding the court or otherwise reforming it. Former South Bend, Indiana, Mayor Pete Buttigieg in February 2019 called the idea of expanding the number of justices “no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”
