Joe Biden says that the rationale for refusing to answer whether he supports expanding the Supreme Court is that he doesn’t want to draw attention to a contentious hypothetical.
But Republicans and conservatives say that his repeated dodges are working against the Democratic presidential nominee, fueling enthusiasm among their base and creating an opening to sway swing voters who are wary of overhauling the nation’s highest court.
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Biden, his running mate California Sen. Kamala Harris, and his top campaign advisers have repeatedly refused to answer whether he agrees with calls from top Democrats to expand the number of justices on the Supreme Court (assuming that Democrats win full control of Congress and the White House) in retaliation for President Trump pushing through a replacement for the late Justice Ruth Bader Ginsburg rather than waiting for the results of the presidential election.
On Thursday, another clunky dodge from the former vice president brought renewed scrutiny.
“You’ll know my opinion on court-packing when the election is over,” Biden told reporters in Arizona.
Some assume that Biden, who expressed opposition to court expansion as recently as October 2019, is declining to refute his fellow Democrats in order to avoid alienating the far-left voters who agree with the idea — and who Biden needs to turn out to the polls in order to defeat Trump decisively.
But to conservatives and Republicans, his dodging (despite his past clear stance on the matter) is an indication that he will cave to the expansion calls.
“Democrats burned the American people with Obamacare by claiming, ‘We have to pass the bill so that you can find out what is in it.’ Now that Joe Biden and Kamala Harris are dodging questions about fundamentally upending the third branch of government by packing the Supreme Court, voters aren’t going to fall for Democrats’ evasiveness again,” said Republican National Committee Rapid Response Director Steve Guest.
Andrew Hitt, the chairman of the Wisconsin Republican Party, told the Washington Examiner that he thinks that’s how voters will interpret Biden’s stance, too.
“That sends a pretty big signal to these folks,” Hitt said. “He is going to pack the court. I mean, I think that’s what everybody is going to interpret that as.”
The issue of an open Supreme Court seat was a motivating factor for voters on the fence in 2016 to choose Trump. This year, though, Hitt said that some Republican organizers are finding some voters no longer feel an urgency about the court and that there is a sense that a conservative majority has been achieved.
But Biden’s refusal to answer whether he supports dramatically reshaping the judiciary is bringing the court issue back to the forefront of urgency.
“If folks think that Joe Biden is going to pack the court and take that away, that will actually continue than to motivate these folks because they won’t have their court,” Hitt said, adding that Wisconsin voters are in tune with judicial selection due to the state’s high-profile state Supreme Court elections.
Retaliatory court expansion is not a popular position. A Washington Examiner/YouGov national poll conducted on Sunday found that 47% of registered voters, a plurality, oppose expanding the Supreme Court if Trump’s nominee, Judge Amy Coney Barrett, is confirmed before the election.
And a September poll in swing states commissioned by Heritage Action, the political advocacy sister organization of the conservative Heritage Foundation think tank, suggested that voters in key states could be motivated to vote against Biden due to the court-packing issue.
A majority of voters in three key swing states said that the possibility of court-packing made them less likely to vote for Biden: 54% in Arizona, 52% in both Florida and North Carolina. In Wisconsin, the number was 46% and in Colorado, 45%. In the five states combined, 14% of Democrats and 54% of independents said that the court-packing possibility made them less likely to vote for Biden.
Heritage Action, which is also working to contact voters directly to support the confirmation of Barrett, says that its grassroots members are energized by the court-packing issue.
“This fight isn’t going away, and we plan to continue drawing attention to Vice President Biden’s statements on packing the court,” the group’s press secretary, Noah Weinrich, told the Washington Examiner. “By refusing to state his position, he is leaving the door open to turning the court into a mini-legislature.”
Every time Biden or someone from his campaign dodges a question on court expansion, it gives Trump’s campaign the opportunity to turn attention away from controversies surrounding the president and to Biden potentially caving to his party’s left wing on yet another important structural issue.
“As if transitioning to socialism wasn’t bad enough, Biden’s silence on fundamentally reshaping one of our three branches of government should scare every single American,” said Ken Farnaso, a deputy national press secretary for the Trump campaign.
