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Biden, Harris dodge questions about Supreme Court expansion

Democratic vice presidential nominee Kamala Harris (left) and presidential candidate Joe Biden walk to the American Indian Veterans National Memorial at the Heard Museum on Oct, 8, 2020, in Phoenix. (Photo by Brendan Smialowski/AFP via Getty Images)

PHOENIX (AP) — There are few topics that Joe Biden isn’t willing to opine on — except the Supreme Court.

The Democratic presidential nominee and his running mate, Kamala Harris, are refusing demands from Republicans — and some fellow Democrats — to say whether they would seek to expand the number of justices on the Supreme Court.

Harris dodged persistent questioning about the issue on Wednesday during her debate against Vice President Mike Pence. And facing pressure to take a stance during a campaign swing through Phoenix on Thursday, Biden offered a particularly terse response.

“They’ll know my position on court packing when the election is over,” he said.

the final weeks of the campaign, Biden is in a bind when it comes to
the future of the judiciary. Republicans, increasingly fearful of losing
both the presidency and the Senate, are seizing on the issue to make a
last-minute argument to voters that a Biden administration would upend
norms and install liberals on an expanding Supreme Court. Some
progressive Democrats are pressing Biden to embrace all means possible
to counter Republican power plays that have pushed the court to the

The debate is likely to intensify next week when Senate
Republicans start confirmation hearings for Amy Coney Barrett. She would
cement a 6-3 conservative majority on the court, the balance already
tilted by Republicans’ holding open a vacancy in the 2016 election year
by refusing to consider President Barack Obama’s nominee.

and Harris have said the Senate should wait until after the election to
fill the seat. Biden has pledged to select the first Black female
justice if given a chance. But he and Harris are otherwise taking pains
to avoid talking about their vision for the Supreme Court’s future.

Devine, a former top adviser to Sen. Bernie Sanders’ presidential
campaign, said that Trump and his allies are pushing the issue to
undercut Biden’s opening with moderate Republicans and that the ticket
is wise to dodge the question for now.

“When you choose to engage
on any issue like this, you’re going to create news coverage, awareness
and back and forth,” Devine said. “And when you refuse to engage, you
make it really hard for the side that’s trying to create the

Republicans face political vulnerabilities related to
the Supreme Court as well. In the aftermath of President Donald Trump’s
coronavirus infection, Barrett’s nomination hasn’t become the rallying
cry the party hoped for.

Democrats also are trying to shore up any
advantage by emphasizing that a conservative court could finally
overturn the 2010 Affordable Care Act, which has grown in popularity
over time but faces its latest challenge in oral arguments slated for
Nov. 10, a week after Election Day.

Polling suggests most Americans want the Senate to wait on confirming a new justice until after the election.

the Constitution says nothing about the number of Supreme Court
justices or lower court judges, only that the president nominates
federal jurists and the Senate confirms them. The high court, in fact,
has had as many as 10 justices since Congress set the original roster of
six in 1789.

There are no formal proposals to add justices, and
the court wasn’t a topline issue in the presidential campaign before
Ruth Bader Ginsburg’s death last month. But since then, Senate Minority
Leader Chuck Schumer has said “nothing is off the table” if Republicans
rush Barrett’s confirmation.

The matter presents Biden with
uncomfortable realities. A former vice president and six-term senator,
he venerates the Senate and a bygone era of deal-making that he insists
is possible again. But the current confirmation politics don’t easily
fit that vision.

Further, Biden’s reluctance to disclose a
position on court expansion stands out from his willingness to engage on
other divides within the broad coalition he’s trying to marshal against
Trump. The progressive movement clamoring for a larger Supreme Court
also wants a single-payer health insurance system, tuition-free college
for all Americans and a complete phase-out of fossil fuels. Anti-Trump
Republicans considering Biden still prefer the president’s tax and
regulatory policies to Biden’s.

The Democratic nominee has told them all no — unlike his sidestepping on court expansion.

moment I answer that question, the headline in every one of your papers
will be about that, other than focusing on what’s happening now,” Biden
told reporters, referring to Barrett’s fast-paced confirmation process
after millions of voters are already casting early ballots. “They’re
denying the American people the one shot they have, under constitutional
law, to be able have their input” by electing a president, Biden said.

His predicament is an outgrowth of years of gamesmanship across both parties.

push for Barrett is at odds with the reasoning they used to ignore
Obama’s nomination of Merrick Garland after Justice Antonin Scalia died
nine months before the 2016 election. Democrats in 2016, including
Biden, made an argument Trump makes now: A president’s power lasts a
full four years.

Republicans abolished the filibuster for Supreme
Court confirmations in 2017 to fill the seat they’d held open, ending
the long-standing practice of effectively requiring 60 senators to
confirm a justice.

In 2013, Senate Democrats abolished filibusters
for regional appeals court posts like the one Barrett now holds on a
Chicago-based bench. They cited Republicans’ blocking of Obama appellate
nominees and GOP calls to reduce the size of the appeals courts by
eliminating some seats they were ensuring remained empty, a kind of
reverse “court packing.”

Before that, it was Senate Democrats —
including Biden — opposing conservative nominees from President George
W. Bush and Republicans dragging their heels on many of President Bill
Clinton’s second-term nominees.

So it goes back to a titanic fight
in which Biden played a starring role. As Judiciary chair in 1987, he
presided over a hearing and vote that ended with conservative luminary
Robert Bork being denied a Supreme Court seat.

Biden’s hope in
2020 is that enough voters can take the same philosophical view that his
Republican colleague and fellow future presidential nominee Bob Dole
took 33 years ago.

“He’s very fair to me in there,” Dole, then the Senate Republican leader, said of Biden during a break in Bork’s hearings. But, Dole added: “The big test is coming. It’ll test not only the chairman, who I think’s a good chairman, but everybody else. … The people are going to find out who’s playing politics and which ones are asking reasonable but tough questions.”

Associated Press writer Alexandra Jaffe in Washington contributed to this report.