WASHINGTON — Joe Biden is punting on the hypothetical question of how Democrats should retaliate if Republicans reverse their approach from 2016 to fill the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death.
Asked by WBAY-TV in Wisconsin whether he’d be open to adding Supreme Court seats if the vacancy is filled and Democrats win full control, Biden said he intends to keep the focus on stopping President Donald Trump’s nomination.
“It’s a legitimate question. But let me tell you why I’m not going to answer that question. Because it will shift the focus, that’s what he wants, he never wants to talk about the issue at hand and he always tries to change the subject,” Biden said in an interview published late Monday. “Let’s say I answer that question, then the whole debate’s going to be about what Biden said or didn’t say, Biden said he would or wouldn’t.”
Biden argued that Trump was moving “in a direction that’s totally inconsistent” with what the Founding Fathers wanted by filling a vacancy when Americans have already begun to cast their ballots.
“It is a fundamental breach of constitutional principle,” he told WBAY-TV. “It must stay on that and it shouldn’t happen.”
Biden’s response serves to keep his options open should Democrats win control in the election. Progressives are agitating for the party to add seats to the Supreme Court in retaliation, which can be done by passing a new law.
His hesitation to embrace or reject the idea of court expansion reflects the tension between his campaign pitch to restore institutions with a return to normalcy, and the outrage among Democratic voters that Trump would replace Ginsburg in the waning weeks before the election with a conservative jurist who opposes what the liberal icon stood for.
Speaking Sunday in Philadelphia, Biden said that “to jam this nomination through the Senate is just an exercise in raw political power, and I don’t believe the people of this nation will stand for it.”
Biden expressed opposition to the idea last year, saying in a Democratic primary debate in October, “I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”