During the October 5 Philadelphia Town Hall, Democratic Presidential nominee Joe Biden said that he will reveal whether or not he supports packing the Supreme Court before Election Day.
However, he said his response will depend entirely on whether the Republican-led Senate rushes the confirmation hearing of Amy Coney Barrett, Republican President Donald Trump‘s Supreme Court nominee.
“Pack the court” in this context means adding additional seats to the court in order to undo the court’s political slant.
“You got a lot of people not able to pay their mortgage, not being put food on the table, not being able to keep your business open, not being able to do anything to deal with what’s going on in terms of the economy as a consequence of COVID, and they have no time to deal with that,” Biden said, referring to Senate Republicans who have failed to reach a negotiation for a COVID-19 stimulus bill to help Americans impacted by the ongoing pandemic.
“But they have time to rush this [Supreme Court nominee] through,” he continued. “Right now it looks like they’re gonna have a vote around Halloween.”
The moderator asked, “So if they vote on it before the election, if they vote out before the election, you are open to expanding the court?”
“I’m open to considering what happens,” Biden said, later promising to state his position on court-packing clearly before Election Day.
Biden avoided answering a question about court-packing at the first debate and his Vice Presidential nominee Kamala Harris also avoided answering a question about it posed to her by Republican Vice President Mike Pence at the October 7 vice presidential debate.
At the time, she responded, “Joe and I are very clear, the American people are voting right now, and it should be their decision about who will serve on this most important body for a lifetime.”
Her response indicated her opposition to Republicans seating a new Supreme Court justice during an election year, a rule known as the Thurmond Rule. The Thurmond Rule was cited in 2016 by Republican Senate Majority Leader Mitch McConnell to block a Supreme Court appointment by then Democratic President Barack Obama. However, the Thurmond Rule is not codified, and is often not followed.
According to the Congressional Research Service, the average amount of time it takes for a Supreme Court justice to be appointed—from presidential nomination to final Senate vote—is 67 days. Since Trump nominated Barrett on September 26, if she’s voted in by October 31, 2020, that would just be 35 days; nearly half the usual time.