Democratic presidential nominee Joseph R. Biden partially ended his stonewalling on Supreme Court-packing this week, saying he’s “not a fan” of the practice that liberals are calling for as payback for confirming Judge Amy Coney Barrett for the Supreme Court.
It was his boldest statement on the issue in weeks but did little to clarify whether he would actively oppose such an effort from a Democratic-controlled Congress — or veto a court-packing bill if it lands on his desk.
“I’ve already spoken on [it] — I’m not a fan of court-packing,” he told WKRC-TV in Ohio. “But I don’t want to get off on that whole issue. I want to keep focused.”
Since winning his party’s presidential nomination, Mr. Biden repeatedly refused to take a position on whether Democrats should expand the number of seats if President Trump and Senate Republicans push through Judge Barrett’s nomination.
During the presidential primary contest, Mr. Biden had warned against expanding the court, saying Democrats could “rue that day” if it came back to bite them.
His latest answer leaves him enough wiggle room to avoid gifting Mr. Trump an issue with little time left before Election Day, according to Democratic strategist Hank Sheinkopf.
“It’s vague enough to keep the focus on Trump,” Mr. Sheinkopf said.
Sen. Chris Coons of Delaware, a top Biden ally, said it’s no secret that Mr. Biden has been opposed in the past to increasing the size of the court to more than nine justices.
“But these recent circumstances where over the last four years Majority Leader [Mitch] McConnell, President Trump have jammed hundreds of conservative, young, in a dozen cases demonstrably unqualified judges onto the courts — that constitutes court-packing,” Mr. Coons said. “And he was saying, I’m not a fan of court-packing.”
Senate Minority Whip Richard J. Durbin said there is no “active” conversation about changing the court’s composition more broadly.
Asked if Mr. Biden’s weighing in was a distraction, Mr. Durbin said the former vice president is free to speak his mind on the issues.
“Most of the time I’m going to agree with him,” said the Illinois Democrat. “Sometimes I won’t.”
Mr. Sheinkopf said that from a political perspective, Mr. Biden is trying to avoid giving Mr. Trump ammunition.
“If he gets into it, he gives Donald Trump an issue, he loses votes,” he said. “The trick here is to keep Donald Trump on the defensive on COVID and the economy wherever you can, but primarily COVID.”
Mr. Trump’s team has criticized Mr. Biden for equivocating, saying that his reluctance to engage is tantamount to endorsing the practice.
“I mean, you all get it. Out here in the heartland, we might have been born in the morning but we weren’t born yesterday morning,” Vice President Mike Pence said while campaigning in Wisconsin on Tuesday. “I mean, the only explanation about why they aren’t answering the question is [because] Joe Biden and Kamala Harris are planning to pack the court with liberal judges if they win this election.”
At Judge Barrett’s confirmation hearing Tuesday, Sen. Mike Lee, Utah Republican, questioned where things would end up if lawmakers tried to push to add seats to the court.
“You’d end up increasing it incrementally,” he said. “Before long it looks like the Senate in Star Wars where you’ve got hundreds of people on there.”
Aziz Rana, a professor at Cornell Law School, said Tuesday that a Supreme Court’s stifling or blocking popular legislation from a Democratic-controlled Congress might ultimately force the party to become more aggressive on the issue.
“I think probably before that, it’d be hard-pressed to imagine somebody like Biden being willing to take on … more radical proposals,” Mr. Rana said.
Mr. Rana was speaking at a forum hosted by Yale Law School and organized by Take Back the Court, an advocacy group that is pushing to expand the number of seats on the Supreme Court.
In addition to court-packing, Mr. Biden has stiff-armed the far left on several other issues, including health care and defunding the police.
For now, many liberals are pulling their punches to try to ensure that Mr. Biden gets across the finish line.
Sen. Cory A. Booker of New Jersey, who tangled with Mr. Biden in the primary contest, said he doesn’t want to start doling out unsolicited advice at this stage in the game.
“He is earning people’s trust — they trust him more than the guy who’s in office right now,” Mr. Booker said on CNN when asked about court-packing. “Far be it for me to ’should’ all over him.”
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
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