Former Vice President Joe Biden continued to refuse to answer whether he would pack the Supreme Court when questioned on the topic on Thursday.
“You’ll know my position on court packing when the election is over,” the Democratic presidential nominee told reporters during a joint campaign appearance in Phoenix with running mate Sen. Kamala Harris of California.
Biden offered the same reason he has repeatedly offered, including at last week’s presidential debate, regarding his refusal to state his position on the issue.
“The moment I answer that question,” he said, “the headline in every one of your papers will be about that other than focusing on what’s happening now. The election has begun. There’s never been a court appointment once an election’s begun.”
Joe Biden:
“You’ll know my opinion on court packing when the election is over.” pic.twitter.com/uYEXZHHAp1
— Daily Caller (@DailyCaller) October 8, 2020
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His response would seem to be an admission that the topic is very important, with significant implications regarding the separation of powers.
The Constitution gives Congress the authority to decide how many justices sit on the Supreme Court; however, the number has been nine since 1869.
Democratic President Franklin Roosevelt backed legislation to add justices in the 1930s when the court struck down some of his New Deal legislation.
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The FDR-backed Judicial Procedures Reform Bill of 1937 would have allowed him to “appoint up to six additional justices … for every justice older than 70 years, 6 months, who had served 10 years or more,” according to History.com.
Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center, told History.com a majority of the public did not support the bill. Congress, meanwhile, never voted on it.
“Nine seems to be a good number. It’s been that way for a long time,” the late Justice Ruth Bader Ginsburg told NPR in July 2019.
“I think it was a bad idea when President Franklin Roosevelt tried to pack the court,” she added.
“If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
Vice President Mike Pence pressed Harris on the issue during Wednesday night’s vice presidential debate in Salt Lake City, Utah.
He first noted President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court is consistent with precedent regarding presidential election years and does not give Democrats a valid reason to add justices.
“If Judge Amy Coney Barrett is confirmed to the Supreme Court of the United States, are you and Joe Biden, if somehow you win this election, going to pack the Supreme Court to get your way?” Pence asked.
Harris responded by making the deceptive claim that Abraham Lincoln refused to nominate a justice to the Supreme Court shortly before his re-election in October 1864, claiming “Honest Abe” did not think it was the right thing to do.
However, Lincoln did not refuse to nominate, but rather waited to nominate Salmon Chase to replace Chief Justice Roger Taney until December 1864, because the Senate had been out of session.
The 16th president nominated Chase, his former treasury secretary, on Dec. 6, and the Senate confirmed him nine days later on Dec. 15.
Harris argued Lincoln’s precedent was to let the people decide by first seeing who they voted for in the election.
“The American people are voting right now, and it should be their decision about who will serve on this most important body,” she said.
Pence countered, “The American people are voting right now, they’d like to know if you and Joe Biden are going to pack the Supreme Court if you don’t get your way in this nomination.”
“The American people deserve a straight answer,” he added, “and if you haven’t figured it out yet, the straight answer is they are going to pack the Supreme Court if they somehow win this election.”
“I just want the record to reflect,” Pence later said, as the moderator began to shift to another subject, “she never answered the question.”
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