Biden Refuses to Say Whether He Supports Adding Seats to Supreme Court

September 22, 2020 Updated: September 22, 2020

Democratic presidential nominee Joe Biden on Monday declined to answer a question about whether he would back a push by some Democrats to pack the Supreme Court if they gain more power in the upcoming election.

“It’s a legitimate question, but let me tell you why I’m not going answer that question, because it will shift all the focus,” Biden told WBAY-TV in Wisconsin.

“That’s what he wants. He never wants to talk about the issue at hand. He always tries to change the subject. Let’s say I answer that question, then the whole debate’s gonna be, ‘well Biden said or didn’t say.’ ‘Biden said he would or wouldn’t.’ The discussion should be about why he’s moving in a direction that’s totally inconsistent with what the founders wanted.”

Biden said the Constitution lays out how the Supreme Court confirmation process works: voters get to choose a president, that president picks a nominee, and the Senate considers the nominee before voting to approve or reject the nomination.

Biden claimed that President Donald Trump choosing a nominee now, so close to the Nov. 3 election, would go against the Constitution, though he didn’t explain his line of reasoning.

“By the time this Supreme Court hearing would be held if they hold one, it’s estimated 40 to 45 percent of the American people will already have voted,” Biden said.

“It’s a fundamental breach of the constitutional principle.”

Justice Ruth Bader Ginsburg died last week, giving Trump the opportunity to nominate a third justice.

During the Democrat primary race, Biden had committed to not supporting the push to add seats to the nine-justice Supreme Court.

US Supreme Court Justices
Standing from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, and Associate Justice Brett Kavanaugh. Seated from left to right: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, and Associate Justice Samuel Alito. (Mandel Ngan/AFP via Getty Images)

“I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he said in July 2019.

At an event the next month, he added: “I don’t think you can start to fool around with changing the structure of the Constitution legislatively. We tried the court-packing piece under Roosevelt. Even the Democrats opposed it at the time.”

The number of justices on the Supreme Court has changed over time.

The first version included just six justices. About 20 years later, the number was reduced to five, but soon increased back to six.

In 1807, Congress added a seventh justice. Several others were added in the 1800s, bringing the number to 10.

The current number has remained the same since 1869, under the Judiciary Act.

President Franklin D. Roosevelt, a Democrat, tried to add justices in the 1930s because he was upset with Supreme Court rulings.

“This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt told the American public over the radio in March 1937, according to the National Constitution Center.

The bill that would have added six seats was shot down by the Senate Judiciary Committee.

“The bill is an invasion of judicial power such as has never before been attempted in this country,” the committee wrote in a report.

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