It is the question that Joe Biden does not want to answer: would he expand the size of the US Supreme Court to loosen the conservative grip on the nation’s highest judicial bench?
The once-fringe idea of adding seats to America’s high court has suddenly come into the mainstream with the death last month of justice Ruth Bader Ginsburg and Donald Trump’s drive to install her successor before the November election.
For weeks Mr Biden, the Democratic presidential nominee, has sought to avoid stating his views on the matter. Most notably, he declared last week that he would explain his position “the minute the election is over”.
On Monday the former US vice-president rowed back, clarifying that he was “not a fan” of expanding the Supreme Court beyond its current panel of nine justices, but declined to elaborate further. “I don’t want to get off on that whole issue.”
Mr Biden’s evasive answers show the tight rope he is walking on as he heads towards election day with a significant polling advantage against Mr Trump. He must balance the demands of progressive Democrats, many of whom support court packing, while also retaining his hard-won reputation as a political moderate with appeal to Republicans as well as his own party.
“The bottom line is that [Mr Biden] feels he’s in a really good position right now and he really doesn’t want to do anything to rock the boat,” said Jim Manley, a one-time aide to Harry Reid, the former Democratic Senate majority leader.
“If he says he’s for court packing, that gives the Republicans just another target to go after him, and if he opposes it, the left is going to be unhappy,” Mr Manley added.
The debate is playing out against the backdrop of Senate confirmation hearings for Amy Coney Barrett, who is likely to be installed as Donald Trump’s third high court justice just before the election on November 3.
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The unprecedented Republican effort to install Ms Barrett so close to polling day has prompted anguish from Democrats, who would face governing under a 6-3 conservative majority on the Supreme Court even if they win control of the White House and the Senate.
Republicans have sought to elevate the spectre of court-packing and Mr Biden’s reticence on the issue to gain an advantage in an election that Democrats hope will be a referendum on the president and his handling of the coronavirus pandemic.
Mr Trump is heavily trailing Mr Biden in all major national opinion polls and also lagging in key battleground states he would need to win to secure re-election. But in wielding court-packing claims against his rival, Mr Trump is seizing on an idea that is generally unpopular with the American public.
A Morning Consult/Politico poll conducted earlier this month found just 22 per cent of registered voters said Congress should pass a law allowing more than nine Supreme Court justices, compared to 47 per cent who opposed such a move.
“Biden even refuses to answer questions on the packing of the Supreme Court,” Mr Trump said at a rally on Monday. “They can’t get there legitimately so they say, that’s alright, we’ll just pack the court.”
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Senate Republicans have similarly pressed the issue during this week’s Senate confirmation hearings for Ms Barrett.
“Lately the left is threatening to pack the Supreme Court in retaliation for this confirmation process,” said Chuck Grassley, the Republican senator from Iowa, on Monday. His colleague from Nebraska, Ben Sasse, went further and likened court packing to a “suicide bombing”.
Mr Biden’s avoidance of the issue underscores divisions within the Democratic party, and foreshadows potential party infighting should it win control of the White House and both chambers of Congress next month.
Previously a fringe proposal, adding seats to the Supreme Court and expanding the federal judiciary in general has begun to gain credence among mainstream Democrats as they have watched Republicans move with ruthless efficiency to secure judicial positions for conservatives.
In 2016 Republicans held open the vacant Supreme Court seat left by the death of justice Antonin Scalia for more than eight months, arguing that voters should get a say through that year’s presidential election. Democrats have reacted with fury as Republicans have taken the opposite tack this year with Ms Barrett’s nomination.
Christopher Kang, chief counsel for Demand Justice, a Democratic activist group, said court packing was a “logical outcome” of Republicans “stealing the seat from Obama in 2016, and then turning around and changing the rules to fill another vacancy now”.
“What else would Republicans expect to happen?” he asked.
But the issue nevertheless divides Democratic lawmakers. In the party’s crowded presidential primary field, only Tom Steyer, the billionaire hedge fund manager, said he supported expanding the court.
However, Kamala Harris, Mr Biden’s running mate, as well as others including Elizabeth Warren, the US senator from Massachusetts, and Pete Buttigieg, the former mayor of South Bend, Indiana, said they were open to the possibility.
More recently, Chuck Schumer, the Senate’s top Democrat, has said “everything is on the table” if the Democrats regain control of the Senate after November’s election, while Nancy Pelosi, the Democratic speaker of the House of Representatives, has said she has “arrows” in her “quiver”.
Mr Manley said: “There’s a debate going on in this party and it’s going to become much more pronounced if and when we retake the presidency and or we flip the Senate.”
Changing the size of the Supreme Court would require passing legislation to alter a 1869 law that set the number of justices at nine. The number of justices had varied before then, and the US constitution does not specify how large the court should be.
Democrats would also have to abandon the Senate’s filibuster rule on legislation, which requires the support of 60 senators to end debate and move to a vote. With Democrats unlikely to have more than a slim majority in the Senate, the filibuster rule would allow Republicans to block any court-packing.
Franklin Delano Roosevelt in the 1930s sought to pass legislation to add new justices after the Supreme Court blocked his New Deal laws. The failed move was unpopular, and opposed by members of his own Democratic party, but is credited with pressuring the court to abandon its opposition to Roosevelt’s reforms.