Democratic presidential nominee Joe Biden says he will tell Americans his position on “packing” the Supreme Court … after they have already voted for him.
“You’ll know my opinion on court packing when the election is over,” Mr Biden told reporters during a visit to the swing state Arizona today.
“It’s a great question, and I don’t blame you for asking it. But you know the moment I answer that question, the headline in every one of your papers will be about that, (rather) than focusing on what is happening now.”
This is not how elections are supposed to work.
Usually, candidates tell voters what they plan to do if they win. The voters then use that information to decide which candidate they prefer.
Here we have a presidential candidate telling Americans they will only discover whether or not he plans to do something extremely controversial, which could influence who they decide to vote for, after the election.
Imagine your partner saying you will learn their position on extramarital affairs after your wedding. Same thing.
Mr Biden was swiftly panned online. White House Press Secretary Kayleigh McEnany, her predecessor Sarah Huckabee Sanders and former United Nations ambassador Nikki Haley all joined the pile-on.
What do we mean when we talk about “packing” the court?
The context here is that President Donald Trump is likely to appoint the next Supreme Court Justice, filling the seat vacated by the death of progressive legal icon Ruth Bader Ginsburg.
Mr Trump has nominated Judge Amy Coney Barrett, a conservative, to replace Justice Ginsburg, and is pushing for the Republican-controlled Senate to confirm her before the election.
If that happens, it will shift the balance of the Supreme Court, leaving it with six conservative Justices and just three progressives. Democrats fear that could lead to previously settled issues, such as abortion rights, being revisited.
Some Democrats have floated the idea of adding new seats to the court, should Mr Biden win the election and become president in January. This could be done through an act of Congress.
Mr Biden could then appoint multiple progressive jurists, changing the philosophical balance of America’s highest judicial body once again.
When people refer to “packing”, that is what they’re talking about.
The Democratic nominee and his running mate, Senator Kamala Harris, have both repeatedly dodged questions on the idea. Is it something they plan to do? Both refuse to say.
Mr Biden’s latest and most farcical attempt to duck the issue came in the wake of yesterday’s vice presidential debate, during which Ms Harris also failed to give a straight answer.
“I think the American people would really like to know – if Judge Amy Coney Barrett is confirmed to the Supreme Court of the United States, are you and Joe Biden, if somehow you win, going to pack the Supreme Court to get your way?” Vice President Mike Pence asked Ms Harris.
“I’m so glad we went through a little history lesson,” Ms Harris replied, alluding to something Mr Pence said earlier.
“Let’s do that a little more. In 1864-” she started to say.
“I would like you to answer the question,” Mr Pence interjected.
“Mr Vice President, I’m speaking. OK?” Ms Harris shot back.
“In 1864 – one of the political heroes, certainly of the President, is Abraham Lincoln. Abraham Lincoln was up for re-election. And it was 27 days before the election. And a seat became open on the Supreme Court. Abraham Lincoln’s party was in charge not only of the White House but the Senate. But Honest Abe said, ‘It’s not the right thing to do.’
“The American people deserve to make the decision about who will be the next president, and then that person can select who will serve for a lifetime on the highest court of our land.”
It will not have escaped your notice that she dodged the question. Mr Pence tried again.
“People are voting right now. They would like to know if you and Joe Biden are going to pack the Supreme Court if you don’t get your way,” he said.
“People deserve a straight answer. The answer is they are going to pack the Supreme Court if somehow they win. If you cherish our Supreme Court, if you cherish the separation of powers, reject the Biden-Harris ticket, re-elect Donald Trump.”
“Let’s talk about packing the court then,” Ms Harris said.
“The Trump-Pence Administration has been – because I sit on the Senate Judiciary Committee, Susan, as you have mentioned. I have witnessed the appointments – lifetime appointments, to the Federal Courts, District Courts, courts of appeal, people who are purely ideological.
“People who have been reviewed by legal professional organisations and found to have been not competent or substandard.
“And do you know that of the 50 people who President Trump appointed to the Court of Appeals for lifetime appointments, not one is black? This is what they have been doing. You want to talk about packing a court? Let’s have that discussion.”
At that point, moderator Susan Page decided to move on.
“I want the record to reflect she never answered the question,” Mr Pence said, getting the last word on the matter.
Mr Biden tried to mount the same argument as his vice presidential nominee during his exchange with reporters today, saying Americans should get to vote before the Senate confirms a Supreme Court nominee.
“The election has begun. There has never been a court appointment once an election has begun,” he said.
“They’re denying the American people the one shot they have under constitutional law to be able to have their input.”
Mr Trump and his Republican allies in Congress argue the people already had their say – in 2016, when they made Mr Trump President, and in 2018, when they allowed the Republicans to keep their majority in the Senate.