Democratic presidential candidate Joe Biden speaks during a city hall hosted by ABC News in Philadelphia, PA.
Democratic presidential candidate Joe Biden on Thursday refused to rule out the prospect of increasing the number of Supreme Court justices, saying he would announce a firm position on the matter before election day.
Biden has previously criticized the idea of changing the Senate's rules to pave the way for a president to appoint additional Supreme Court judges who share that president's ideological leanings.
Critics of the idea refer to it as "packing the court," and Biden previously said 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 put pressure on him, the former vice president went even further.
Biden said his position on whether to add seats to the Supreme Court would depend heavily on how Republicans handled the current confirmatory process for Judge Amy Coney Barrett to fill the seat vacated by Judge Ruth Bader Ginsburg's death . Senate Republicans are pushing Barrett's nomination, hearing, and confirmatory voting process, which typically takes months, to a few days before Election Day on November 3rd.
Biden said he had asked if "there is actually a real live debate on the floor when people really have time to go through this process thoroughly".
His position on adding judges, he said, "depends on how much [Senate Republicans] speed this up."
"If you vote [on Barrett's nomination] before the election, are you open to an extension of the court?" Asked Stephanopoulos.
"I'm open to speculation about what happens from this point on," replied Biden.
"But voters have no right to know," replied Stephanopoulos.
"You do and you have the right to know where I am before you vote," said Biden.
"So you will come out with a clear position before Election Day?" Stephanopoulos shot back.
"Yes," said Biden. "It depends on how you deal with it."
Republicans are making an unprecedented rush this fall to nominate the Conservative Barrett, hold hearings and confirm a lifelong appointment. It has led a small but vocal minority of Democrats to embrace the idea that, should Biden win the presidency, he would be entitled to take drastic measures of his own in response to the Republicans' drastic actions against Coney Barrett.
When several rivals called for Biden's 2020 Democratic primary to add seats to the Supreme Court, Biden said it was a "bad idea".
The constitution did not provide for nine judges in the nation's highest court. Congress can pass a law to change the number of judges.
The total has remained unchanged since 1869. President Franklin Roosevelt attempted 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 have to defeat President Donald Trump, who had his own town hall on Thursday night, and the Democrats would have to change at least three GOP-held Senate seats.
Democratic Congressional leaders had not previously embraced the idea of court wrapping, but that showed signs of a shift in recent weeks.
In September, Senate Minority Chairman Chuck Schumer opened the door to both the expansion of the Supreme Court and the elimination of legislative filibuster – which Democrats would likely have to do to pass laws to reshape the court.
"Nothing is off the table," said the New York Democrat at the time when the Republicans were filling Ginsburg's seat.
However, it remains unclear whether Schumer or a hypothetical President Biden would be able to muster a majority of Democrats to support a Supreme Court expansion bill.