Joe Biden and Kamala Harris made it clear on Tuesday night that they don’t want to talk about changes to the Supreme Court, including expanding the current nine-justice bench.
Asked directly at the first presidential debate if he supported “packing the court” in response to President Donald Trump possibly confirming a third Supreme Court justice before the election, Biden openly acknowledged he was dodging the question, saying “Whatever position I take on that, that’ll become the issue.”
Trump seized on the comment, asking Biden repeatedly if he was “going to pack the court,” leading Biden to say, “I’m not going to answer the question.”
Biden’s running mate, Harris, also dodged the query in an interview after the debate.
“We are 35 days away from an election … probably the most important election of our lifetime and our children’s lifetime, and there is nothing about these next 35 days that Joe or I will take for granted,” Harris told CNN’s Jake Tapper. “The focus right now is on reminding people that we have this election that is very much in play … we are in the midst of an election.”
Harris added that she and Biden would “deal with that later.”
The exchanges highlighted the difference between the Democratic ticket and some on the left of the party who have been invigorated by calls for sweeping change in the face of another Supreme Court pick by Trump. Most on the left didn’t expect Biden to be the leader of their cause, but Tuesday’s exchange highlighted the extent to which they wanted to avoid making it a topic of discussion before the election and instead focus on what the Supreme Court fight could mean for the future of the Affordable Care Act.
Top Democratic operatives to powerful elected officials have responded to the death of Ruth Bader Ginsburg and Trump’s decision to nominate Amy Coney Barrett to replace her by pledging that “everything is on the table” as a way to change the Supreme Court and Senate. Motivated by the fact that Democrats believe they will have had two Supreme Courts seats stolen from them after Republicans thwarted President Barack Obama from nominating a justice in the final year of his second term, the proposals include adding seats to the Supreme Court, instituting term limits for justices on the highest court in the country and pushing statehood for places like Washington, DC, and Puerto Rico, to add Democratic US senators.
Biden and Harris’ response, however, makes it clear that the politics of the issue are far more complicated.
In a debate that had little for Republicans to celebrate, Biden’s refusal to talk about changes to the Supreme Court and Harris’ continuation of that strategy was something Trump supporters saw as a win.
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“Joe Biden continues to dodge, weave, and refuse to commit that he will not pack the Supreme Court,” wrote Carrie Severino, the president of the conservative Judicial Crisis Network. “Answer the question, Mr. Biden. Are you going to say ‘no’ to court packing and destroying the institution of the Supreme Court?”
But Biden’s answer was also significant in what he didn’t do: disavow the idea. Biden, ever the Senate traditionalist with a nostalgia for the way debate in the legislative body took place, disavowed a host of liberal policy ideas during the debate, like the Green New Deal and abolishing private insurance, but on changes to the Supreme Court and Senate, he simply punted, not taking a side either way.
The primary force behind the push to change the Supreme Court has come from Demand Justice, a Democratic group that was created in the wake of Trump’s election to fight his judicial appointments.
Fallon did not respond to CNN’s request for comment following the debate but told CNN before the contest that he didn’t expect Biden to be a champion on this cause.
“Some people are going to start talking about it,” said Fallon. “I don’t expect it to include Biden, I don’t expect it to include the Speaker, I don’t expect it to include Chuck Schumer.”
Fallon added: “I don’t think the strategy is for Joe Biden to lead the call on this. This needs to be something that groups, the public embrace and let Biden call out the real world impacts of this.”
Biden has long opposed any proposal to alter the balance of the Supreme Court. During the primary, when other Democratic candidates pushed reforms that focused on the Supreme Court, Biden suggested it was a flawed argument that would just worsen issues in Washington.
And when he was asked about adding seats to the court in the wake of Ginsburg’s death, he said, “It’s a legitimate question but let me tell you why I’m not going answer. Because it will shift the focus.”
He continued, “That’s what (Trump) wants, he never wants to talk about the issue at hand and he always tries to change the subject.”