Politico

Biden refuses to say whether he'd expand the Supreme Court if he wins


Joe Biden would not say whether he opposes the mounting calls in his party to add more members to the U.S. Supreme Court in retaliation for Republicans filling a vacancy right before the presidential election.

Biden told a local Wisconsin TV station Monday that he wants to keep the focus on President Donald Trump and not get distracted by the issue of so-called court-packing, an idea the Democratic presidential nominee has opposed for years.

“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 told Action 2 News. “He never wants to talk about the issue at hand. He always tries to change the subject.”

However, the subject of adding more members to the court has been increasingly raised by Democrats infuriated that Republicans who control the Senate would vote to fill the vacancy left by the Friday death of the Justice Ruth Bader Ginsburg, a liberal icon, just days before the election.

Even before Ginsburg’s death, Democrats began warming to the idea of packing the Supreme Court. They included Sen. Kamala Harris, who’s now Biden’s running mate.

Biden has long opposed the court expansion proposal, but his campaign wouldn’t say whether his refusal to reiterate his prior position signified a shift in belief or was part of his longstanding practice of trying to avoid taking controversial positions or simply stay on message.

But the fact that Biden can’t escape questions about the issue, posed in a swing state crucial to his election, raises doubts about how long he can continue avoiding it in favor of criticizing the GOP Senate and Trump. Biden has also said he won’t name whom he would like to nominate to replace Ginsburg.

The Republicans’ decision to quickly move to fill Ginsburg’s seat marked a reversal from their de facto precedent set in 2016. That year, they refused to hold an election-year confirmation vote on President Barack Obama’s nominee, Merrick Garland, after the death of Justice Antonin Scalia. Trump went on to win the election and Republicans then filled the seat with conservative Justice Neil Gorsuch in April of 2017.

With the reversal of Republicans’ position on filling an election-year vacancy on the court, Biden has performed a rhetorical balancing act on when high court nominees should be considered in an election year.

In his Monday TV interview and in a speech Sunday, Biden argued that as many as 40 percent of voters could have cast ballots by the end of the confirmation hearing of whomever Trump picks as a nominee. Biden told Action 2 News “that’s totally inconsistent with what the founders wanted” because the U.S. Constitution says “voters get to pick the president who gets to make the pick and the Senate gets to decide. We’re in the middle of an election right now … people are voting right now.”

However, the U.S. Constitution says nothing about the timing of confirmation votes and is silent on whether there should be no confirmation hearing right before a presidential election.

In June of 1992, while chairman of the Senate Judiciary Committee, Biden said President George H. W. Bush should not try to fill a high court vacancy when he was running for reelection. Decades later, when Biden was Obama’s vice president, Republicans said this so-called “Biden Rule” extended to any such vacancy in a presidential election year.

Biden then penned a New York Times op-ed in an effort to square his 2016 and 1992 positions, writing that “I feared that a nomination at that late date, just a few weeks before the presidential conventions, would create immense political acrimony.”

Immediately after the 2016 election, in January 2017, PBS’s Judy Woodruff asked Biden about Garland and whether Democrats “should do the same thing and oppose and refuse to go along.” Biden said, “No.”

Woodruff, though, did not specifically ask Biden about the “Biden Rule” or a vacancy that occurs on the court in the summer right before a presidential election.

“The Constitution says the president shall nominate — not maybe he could, maybe he can’t — he shall nominate. Implicit in the Constitution is that the Senate will act on its constitutional responsibility and give its advice and consent,” Biden said. He added that, as Senate Judiciary chair, he presided over more high court nominations than any living person.

“The Constitution says the president shall nominate — not maybe he could, maybe he can’t — he shall nominate. Implicit in the Constitution is that the Senate will act on its constitutional responsibility and give its advice and consent,” Biden said. He added that, as Senate Judiciary chair, he presided over more high court nominations than any living person.

“No one is required to vote for the nominee. But they, in my view, are required to give the nominee a hearing and a vote,” Biden said. “I think the Democrats should not take up what I think is a fundamentally unconstitutional notion that the Republicans initiated 10 months ago. I think they should see who they nominate and vote on them.”

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