Biden Won’t Reveal If He Backs 'Court-Packing,' Says Trump Is Violating 'Constitutional Principle'

Michael Foust | Contributor | Tuesday, September 22, 2020
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Biden Won’t Reveal If He Backs 'Court-Packing,' Says Trump Is Violating 'Constitutional Principle'

Democratic presidential nominee Joe Biden refused Monday to say whether he supports proposals by several prominent Democrats to add seats to the U.S. Supreme Court if President Trump and Republicans fill the vacancy left by the death of Justice Ruth Bader Ginsburg.

Trump said Tuesday he would announce his selection at the White House Saturday.

Although the U.S. Constitution sets the rules for court appointments – the president nominates and the Senate confirms new justices – it does not offer guidance on how many seats the court should have, leaving that up to Congress. Since 1869, the court has had nine seats.

U.S. Sen. Ed Markey (M.A.) said in a tweet that if Republicans fill the vacancy and Democrats take the Senate, “we must abolish the filibuster and expand the Supreme Court.” Such a move often is called “court-packing.”

When asked if Democrats would add seats to the high court if they win a majority, Senate Minority Leader Chuck Schumer (N.Y.) said that “everything is on the table.”

Democratic Rep. Alexandria Ocasio-Cortez (N.Y.) also said she supports court-packing.

Any court-packing legislation must pass the House and Senate and be signed by the president.

Biden was asked Monday if he would “consider adding more Supreme Court justices to the bench.”

“It’s a legitimate question, but let me tell you why I’m not going to answer that question,” Biden told WBAY-TV in Green Bay. Wis. “Because it will shift the focus, that’s what [Trump] 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 about what Biden said or didn’t say, Biden said he would or wouldn’t.

“The discussion should be about why he is moving in a direction that’s totally inconsistent with what the Founders wanted,” Biden added. “The Constitution says … voters get to pick a president who gets to make the pick and the Senate gets to decide. We’re in the middle of the election right now, people are voting now. By the time this Supreme Court hearing would be held, if they hold one, it’s estimated 30 to 40 percent of American people already have voted. It is a fundamental breach of constitutional principle. … It shouldn’t happen.”

Trump has said it’s his constitutional duty to nominate a replacement.

“Article II of our Constitution says the president shall nominate justices of the Supreme Court. I don’t think it can be any more clear,” Trump told supporters in North Carolina over the weekend.


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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chroniclethe Toronto Star and the Knoxville News-Sentinel.