Biden says he'll announce position on 'court packing' before Election Day

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Former Vice President Joe Biden said Thursday that he would take a position on “court packing” — the idea, favored by some liberals, that the Supreme Court should expand beyond its current nine justices — before the Nov. 3 election.

Biden has not laid out a clear opinion on the matter, but acknowledged during an ABC News town hall on Thursday that voters “have a right to know where I stand. They have a right to know where I stand before they vote.” The town hall Thursday evening was one of two different forums featuring Biden and President Trump.

When pressed by ABC’s George Stephanopoulos on whether he would announce his position on court packing before Election Day, Biden said “Yes.”

Due to concerted efforts to expand early and mail-in voting, tens of millions of Americans have already voted. According to data from the U.S. Elections Project, more than 18 million Americans have cast their ballot.

Some progressives have argued that adding more justices is the only way to address what they say has been the politicization of the court at the hands of Republicans. It has become an increasingly popular idea on the left since the death of Justice Ruth Bader Ginsburg in September, and the subsequent Republican push to confirm a new justice with just weeks to go before Election Day.

Critics, however, say that any plan to expand the court would eventually lead to Republicans adding yet more justices, thereby eroding public confidence in a free and fair judiciary.

As he said during the Democratic primaries — and in the last few weeks — Biden repeated Thursday night that he is “not a fan” of court packing but that he is keeping an open mind during the confirmation process of Judge Amy Coney Barrett, Trump’s latest nominee for the Supreme Court. He explained that his position will be determined by how “they handle this.”

"I'm open to considering what happens from that point on,” Biden said, assuming that the Senate votes to confirm Barrett before Election Day.

Biden has avoided making a definitive statement on court packing because, he argues, the question distracts from Trump’s attempt to confirm a new justice so close to the election. "The president would love nothing better than to fight about whether or not I would in fact pack the court or not pack the court," he told Cincinnati’s WKRC-TV earlier this week.

Joe Biden approaches his seat, ahead of an ABC Town Hall event at the National Constitution Center in Philadelphia, Pennsylvania on October 15, 2020.  (Tom Brenner/Reuters)
Joe Biden arrives at the ABC Town Hall event at the National Constitution Center in Philadelphia on Oct. 15, 2020. (Tom Brenner/Reuters)

In 2016, the Republicans, led by Senate Majority Leader Mitch McConnell, famously refused to take up the nomination of Merrick Garland, President Barack Obama’s nominee for the court. At the time, Republicans said it would be improper to confirm a Supreme Court nominee in an election year.

Biden’s running mate, Sen. Kamala Harris of California, has similarly sidestepped the question. During the vice presidential debate in October, Harris noted that the Trump administration has failed to nominate any Black judges to the federal appeals courts.

"Do you know that of the 50 people who President Trump nominated to the courts for lifetime appointments, not one is Black?" Harris said. "This is what they've been doing. You want to talk about packing the courts, let's have that discussion."

Court packing has long been synonymous with President Franklin Roosevelt’s unsuccessful attempt to expand the Supreme Court in 1937, which collapsed amid bipartisan opposition in Congress. The high court has consisted of nine justices since the Reconstruction Era, just after the Civil War.


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