Sen. Kamala Harris (D-Calif.) dodged a pair of direct questions from Vice President Mike Pence during the vice presidential debate in Salt Lake City on Oct. 7 about whether she and Democratic presidential nominee Joe Biden would pack the Supreme Court in the event that the Republican-led Senate confirms President Donald Trump’s nominee to the nation’s highest court before Inauguration Day.
After the two nominees exchanged views on the Supreme Court, Pence used his time at the opening of a response to another query to ask Harris if she would add seats to the Supreme Court if Trump nominee Judge Amy Coney Barrett was confirmed before the future administration takes office.
He asked: “When you speak about the Supreme Court though, I think the American people really deserve an answer, Senator Harris. Are you and Joe Biden going to pack the court if judge Amy Coney Barrett is confirmed?” He added that there were 29 Supreme Court vacancies during presidential election years, with justices nominated in each case.
“But your party is actually openly advocating adding seats to the Supreme Court—which has had nine seats for 150 years—if you don’t get your way. This is a classic case of if you can’t win by the rules, you’re going to change the rules,” Pence added, pointing out that both Harris and Biden have previously avoided this question.
Harris responded by pointing to the year 1864, during which President Abraham Lincoln opted to not nominate a judge to the court before the election.
“Abraham Lincoln was up for reelection and it was 27 days before the election and a seat became open on the United States Supreme Court. Abraham Lincoln’s party was in charge not only of the White House but the Senate, but Honest Abe said it’s not the right thing to do,” Harris said.
“The American people deserve to make the decision about who will be the next president of the United States and then that person can select who will serve for a lifetime on the highest court of our land,” she continued.
While it is true Lincoln didn’t appoint a replacement for Chief Supreme Court Justice Roger Taney, Harris left out the nuance from the decision. Lincoln faced the prospect of losing his reelection bid and is believed to have delayed the nomination to avoid alienating any of the factions supporting him, several of which proposed competing candidates as soon as the vacancy became open.
“Joe and I are very clear that the American people are voting right now and it should be their decision about who will serve on this most important body for a lifetime,” Harris said.
Pence interjected as the moderator began to move on to the next question.
“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 vice president said to Harris before saying to the audience, “The American people deserve a straight answer and if you haven’t figured it out yet, the straight answer is that they are going to pack the Supreme Court.”
After a brief moment of cross-talk and a pitch from Pence to the voters, Harris accused the Trump administration of appointing ideologues to the court and of racism in the selection for the lifetime appointments to the circuit courts.
“I have witnessed the appointment for lifetime appointments to the federal courts—district courts, courts of appeal—people who are purely ideological, people who have been reviewed by legal professional organizations and found to have been not competent or substandard,” Harris said.
“Do you know that of the 50 people that President Trump appointed to the court of appeals for lifetime appointments not one is black?” she added. “This is what they’ve been doing. You want to talk about packing a court, let’s have that discussion.”
As the moderator again tried to move on to the next question, Pence noted that Harris still has not answered if she would pack the Supreme Court.
The Constitution does not prescribe a number of seats to the Supreme Court. The number of the seats fluctuated until 1869, when it was set at nine and has remained at that number since.
Trump appointed Barrett to fill the seat left vacant by the late Supreme Court Justice Ruth Bader Ginsburg, who passed away at the age of 87 on Sept. 18 after a long battle with cancer.