Biden has previously criticized the idea of changing Senate rules in order to clear the way for a president to appoint additional justices to the Supreme Court who share that president’s ideological leanings.
Critics of the idea refer to it as “packing the court,” and Biden has said previously in his presidential campaign that he is “not a fan” of the idea.
Biden initially repeated that line on Thursday during a town hall event hosted by ABC, but after moderator George Stephanopoulos pressed him, the former vice president went further.
Biden said his position on whether to add seats to the Supreme Court would depend heavily on how Republicans handled the current confirmation process for Judge Amy Coney Barrett to fill the seat left open by the death of Justice Ruth Bader Ginsburg. Senate Republicans are squeezing Barrett’s nomination, hearings and confirmation vote process, which typically takes months, into a matter of days in order to get it done before Election Day on Nov. 3.
Biden said he was looking to see whether “there’s actually real live debate on the floor, if people are really going to be able to have time to go through this” process thoroughly.
His position on adding justices, he said “depends on how much [Senate Republicans] rush this.”
“If they vote [on Barrett’s nomination] before the election, you are open to expanding the court?” Stephanopoulos asked.
“I’m open to considering what happens from that point on,” Biden replied.
“But don’t voters have a right to know” your position on this, Stephanopoulos responded.
“They do and they have a right to know where I stand before they vote,” said Biden.
“So, you’ll come out with a clear position before Election Day?” Stephanopoulos shot back.
“Yes,” Biden said. “It depends on how they handle this.”
Republicans are undertaking an unprecedented rush this fall to nominate, conduct hearings for and confirm the conservative Barrett to a lifetime appointment. It has caused a small but vocal minority of Democrats to embrace the idea that Biden, should he win the presidency, would be justified in responding to the Republicans’ drastic action on Coney Barrett with drastic actions of his own.
When several of Biden’s rivals in the 2020 Democratic primary called for adding seats to the Supreme Court, Biden said it was a “bad idea.”
The Constitution did not establish nine justices on the nation’s top court. Congress can pass a law to change the number of justices.
The total has remained unchanged since 1869. President Franklin Roosevelt tried and failed to expand the court in the 1930s.
Packing the court would require unified Democratic control of the White House, House and Senate – not to mention widespread support within the party itself. Biden would need to defeat President Donald Trump, who had his own town hall Thursday night, and Democrats would have to flip at least a net three GOP-held Senate seats.
Democratic congressional leaders had previously not embraced the idea of court packing, but that showed signs of shifting in recent weeks.
In September, Senate Minority Leader Chuck Schumer opened the door both to expanding the Supreme Court and removing the legislative filibuster – which Democrats would likely need to do to pass legislation to remake the court.
“Nothing is off the table,” if Republicans move forward with filling Ginsburg’s seat, the New York Democrat said at the time.
Even so, it remains unclear whether Schumer, or a hypothetical President Biden, would be able to muster a majority of Democrats to back a Supreme Court expansion bill.