Democrats have decried the Senate GOP for breaking precedent that they say was established in spring 2016 when Majority Leader Mitch McConnell refused to hold hearings for then-President Barack Obama’s nominee, citing the impending election, but presidents are allowed to make appointments until the end of their terms.
That court fight, which became moot when Trump won the 2016 election and appointed Justice Neil Gorsuch, is likely in part what Biden was referring to in his insistence that Republicans are already packing the court, with many on the left viewing the Gorsuch seat as stolen.
The latest confirmation battle began when Justice Ruth Bader Ginsburg died on Sept. 18, setting up a tight timeline for Republicans to confirm her replacement, with a final floor vote scheduled to take place days before the election.
Biden’s eagerness to change the subject comes as he and his running mate, Sen. Kamala Harris (D-Calif.), take heat for skirting questions about whether they would pursue judicial reforms like adding seats to the court to balance out what could soon be a conservative majority.
While Biden, a strident institutionalist, has said in the past he opposed court packing, Harris said during her presidential bid that she’s open to looking at such changes.
Vice President Mike Pence grilled Harris on the prospect in this week’s vice presidential debate, inquiries she pointedly dodged.
Biden raised eyebrows on Friday when he retorted that voters “don’t deserve” to hear his stance on court packing ahead of the election.
“They’ll know my opinion on court-packing when the election is over,” he said a day earlier, claiming that whatever position he takes would be a distraction from more pressing issues.
He reiterated that argument on Saturday.
“We should be focused on what’s happening right now,” he said. “And the fact is that the only packing going on is this court is being packed now by the Republicans after the vote has already begun. I’m going to stay focused on it so we don’t take our eyes off the ball here.”