Joe Biden Says Amy Coney Barrett Appointment 'Not Constitutional' as He Evades Court Packing Question Again

Democratic presidential nominee Joe Biden told reporters on Saturday that President Donald Trump's nomination of Judge Amy Coney Barrett amounted to packing the Supreme Court, calling it "not constitutional."

Biden spoke to reporters Saturday while en route to a campaign stop in Pennsylvania. When he was asked whether or not he supported adding seats to the Supreme Court, a practice known as court packing, Biden accused the Trump administration of attempting to pack the court itself, according to the Washington Times.

"Look, the only court packing is going on right now. It's going on with the Republicans packing the Court now. It's not constitutional what they're doing," Biden said.

In recent weeks, Biden has refused to address whether he plans to add seats to the Court in order to make the judicial branch of the U.S. government more likely to issue left-leaning rulings. Though Republicans have not added any seats, Trump has already named two justices to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh. If his third nomination is confirmed, the Supreme Court will have a 6-3 conservative majority.

However, Biden is mistaken when he calls the process "not constitutional." Though the Constitution establishes the Supreme Court, it does not lay out procedures for nominating justices, nor even stipulate the number of justices on the Court. Though established with six justices in 1789, since 1869, there have been nine justices on the Court.

There is precedent for not confirming a president's nominee in an election year. Most notably in 2016, when President Barack Obama nominated Judge Merrick Garland to replace the late Justice Antonin Scalia. Senate Majority Leader Mitch McConnell (R-Ky.) said he would not hold a confirmation hearing for Obama's nominee, as his term would be over in a year.

McConnell cited the Thurmond Rule to back up his decision, an informal precedent named for Republican Senator Strom Thurmond of South Carolina. In 1968, Thurmond blocked President Lyndon Johnson from appointing Justice Abe Fortas as chief justice to replace the retiring Justice Earl Warren. The Thurmond Rule, however, is not an official rule and is often not followed.

McConnell has promised to hold confirmation hearings for Barrett. Her hearings are scheduled to start Monday.

"Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary," McConnell said in a statement September 18. "Once again, we will keep our promise. President Trump's nominee will receive a vote on the floor of the United States Senate."

Newsweek reached out to McConnell's office for comment.

Joe Biden
Former Vice President Joe Biden told reporters Saturday that the appointment of Amy Coney Barrett to the Supreme Court was "not constitutional." Alex Wong/Getty

At Wednesday's vice presidential debate, Sen. Kamala Harris (D-Calif.), also dodged the court packing question and argued against Barrett receiving a confirmation hearing by invoking the first Republican president, Abraham Lincoln.

"I'm so glad we went through a little history lesson. Let's do that a little more," Harris said. "In 1864 ... Abraham Lincoln was up for reelection. And it was 27 days before the election. And a seat became open on the United States 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 of the United States, and then that person will be able to select who will serve on the highest court of the land,'" she added.

While the basic facts are true—a seat on the Supreme Court opened up 27 days before the 1864 election and sitting president Lincoln did not name a nominee—Harris' description of Lincoln's reasoning is not entirely accurate. Though Lincoln told aides he was "waiting to receive expressions of public opinion from the country," according to The Washington Post, Lincoln's real motivation was to keep his rivals in the party from campaigning against him—particularly Salmon P. Chase.

In addition, the Republican Party of 1864 was divided into different factions. Since Congress was in recess until after the election, there was no reason to name a replacement and potentially cause a schism in the party. Chase was ultimately Lincoln's nominee in an attempt to keep Chase from his interest in obtaining the presidency for himself.

Though Biden has lately dodged court packing questions, in the past, he has railed against the practice. In 2005, he described former President Franklin D. Roosevelt's attempt to expand the court to 15 justices as a "power grab."

"In the summer of '37, Roosevelt had just come off of a landslide victory over Alf Landon," Biden said at the time. "He had a Congress made up off of solid New Dealers, but the nine old men of the Court were thwarting his agenda. In this environment, Roosevelt—I remember this old adage about power corrupts and absolute power corrupts absolutely—corrupted by power, in my view, unveiled his court-packing plan."

"He wanted to increase the number of justices to 15, allowing himself to nominate those additional judges. It took an act of courage on the part of his own party institutionally to stand up against this power grab."