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Biden Won’t Say Whether He’d Pack the Supreme Court if He Wins

Democratic presidential nominee and former Vice President Joe Biden speaks during a campaign event at the Wisconsin Aluminum Foundry in Manitowoc, Wis., September 21, 2020. (Mark Makela/Reuters)

Democratic presidential nominee Joe Biden on Monday refused to say whether he would reject Democrats’ calls to add more members to the Supreme Court if Republicans move forward with filling the vacancy left by Justice Ruth Bader Ginsburg ahead of the November election.

Biden, who has vocally opposed the idea of court-packing for years, told a local Wisconsin TV station that he’d prefer to keep the focus on President Donald Trump than to discuss the issue of court packing.

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

While some Democrats, including Biden’s running mate Senator Kamala Harris (D., Calif.) had expressed a consideration for packing the Supreme Court before Ginsburg’s death, the growing political rift over the nomination has only increased calls from Democrats to expand the court.

The Biden campaign wouldn’t say whether his avoidance of the topic was reflective of a changing belief or of his longtime tactic of trying to avoid controversial positions, Politico reported.

For his part, Biden has said he would not name whom he would like to nominate to the vacancy.

Democrats have accused Senate Republicans of going back on the standard they set in 2016 following the death of Justice Antonin Scalia when Senate Republicans refused to vote on President Obama’s nominee Merrick Garland.

“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell had said then. “Therefore, this vacancy should not be filled until we have a new president.”

However, McConnell said his current stance is not comparable to his position from 2016 as the Senate was held by Republicans while the president was a Democrat.

Biden on Monday said a confirmation hearing held when as many as 40 percent of voters could have cast ballots would be “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.”

The U.S. Constitution does not make mention of the timing of confirmation votes and offers no guidance on whether a confirmation hearing should be held ahead of a presidential election.

Biden himself, as chairman of the Senate Judiciary Committee in June 1992 said President George H.W. Bush should not try to fill a Supreme Court vacancy while running for reelection.

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. Republicans cited this “Biden rule” in 2016 when they refused to vote on Garland’s confirmation. 

When asked in January 2017 if Democrats should follow in Republican’s steps and refuse to go along with a Republican nominee, Biden said no, though he was not specifically asked about filling a vacancy so close to an 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. 

“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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