During the first half-hour of Tuesday’s presidential debate, moderator and Fox News host Chris Wallace asked a simple question to former vice president Joe Biden: “Are you willing to tell the American tonight whether or not you will support…packing the court?”
Prominent Democrats, including Senate Minority Leader Chuck Schumer (D–N.Y.), have suggested that adding new seats—and new progressive Supreme Court Justices—would be an appropriate response if Republicans manage to confirm Amy Coney Barrett to the Supreme Court. This comes after Republicans, in a similar situation at the end of President Barack Obama’s second term, refused to confirm Democratic nominee Merrick Garland.
In the past, Biden has dismissed the idea of packing the court if Democrats control the White House and the Senate. In July 2019, Biden said that he was “not prepared to go on and try to pack the court.” In October, he said that he “would not get into court-packing,” and in his January interview with The New York Times, he claimed that he would have no proposed judicial reforms.
On Tuesday night, however, Biden neatly dodged the issue.
“Whatever position I take on that, that’ll become the issue,” he said. Trump followed up by asking the question directly to Biden, twice. “Are you going to pack the court?” Biden refused to answer.
Does Biden actually oppose packing the court? Last night, despite the general mayhem, was a chance to plant a flag on the issue. That’s important considering that members of Biden’s party—Sen. Ed Markey (D–Mass.) and Rep. Alexandria Ocasio-Cortez (D–N.Y.), most notably—want to pack the court if Barrett is confirmed. During the Democratic primary, several other candidates were open to the idea as well, including Sen. Kamala Harris (D–Calif.), who is now Biden’s running-mate.
Biden is often described as a centrist, but he’s more accurately described as a reflection of the center of the Democratic Party, whatever that may be at a given moment. The man behind the 1994 Crime Bill is now the head of the party most supportive of racial justice; the man who voted for the bill that created our deportation immigration system is the candidate for immigration reform. He is, to quote Reason‘s Matt Welch, a “rusty political weather vane.”
Does that mean Biden’s views on court-packing are now changing as well? His answer on Tuesday night was not substantial enough to tell, but it certainly seems like the Democratic wind is blowing that direction.