Speaking to reporters on Saturday, Biden again declined to say whether he supports packing the court like some in his party and tried to turn the issue back on Republicans.
“The only court packing going on right now is going on with Republicans… It’s not constitutional what they’re doing,” Biden told reporters, arguing the vacancy caused by the death of Ruth Bader Ginsburg should not be filled until after November’s presidential election.
But critics hit back, saying that while Democrats can argue that there is a political argument against filling the seat now, the Constitutional doesn’t prohibit doing so. Republicans are moving forward Monday with Barrett’s hearings.
“To say that filing a vacancy on the Supreme Court is ‘court packing’ is like saying that a ‘Hail Mary’ pass at the end of a football game is ‘intentional grounding,’” said George Washington University law professor Jonathan Turley. “The Constitution expressly allows for such for a nomination and confirmation.”
On Saturday, CNN’s Jake Tapper pressed Biden spokeswoman Kate Bedingfield on Biden’s claim that confirming Barrett now – and not after the election – would be unconstitutional.
“We are now in the midst of the election,” Bedingfield said during an interview on “State of the Union.” “Millions of people have already cast their votes. And you see that the vast majority of people say that they want the person who wins the election on Nov. 3 to nominate the justice.”
“That’s a poll. That’s not the Constitution,” Tapper said.
“There is the constitutional process of advise and consent, and the American people get to have their say by voting for president, by voting for senators,” Bedingfield said. “We are now 23 days away from the election.”
“But it’s not unconstitutional,” Tapper countered.
“Voters are being denied their constitutional right to have a say in this process,” Bedingfield said.
“They elected the Senate,” Tapper said, before closing out the interview by thanking Bedingfield for “deftly sidestepping” questions.
Other Democrats are mirroring Biden’s language. Judiciary Committee member Sen. Chris Coons said on Sunday that the Senate moving to confirm Barrett “constitutes court-packing,” and called the nominee’s views “disqualifying.”
Coons, D-Del., made the comments during an interview with “Fox News Sunday” host Chris Wallace. Sen. Ben Sasse, R-Neb., also spoke with Wallace Sunday.”I’m going to be laying out the ways in which Judge Barrett’s views … are not just extreme, they’re disqualifying,” Coons said of Democrats’ strategy for Barrett’s hearings. “It constitutes court-packing.”
Court-packing’s traditional definition is expanding the Supreme Court by law and then confirming justices to those seats, not what Republicans are doing, which is filling a naturally occurring vacancy. Sasse shot back that Coons’ definition of court-packing was “obviously” incorrect and accused the Democrat of using “Orwellian” language.
Fox News’ Morgan Phillips, Evie Fordham and Tyler Olson contributed to this report.