Democratic presidential candidate Joe Biden arrives to board his campaign plane in Delaware on Thursday. Biden said the court system is "getting out of whack" and that he would set up a commission to explore reforms if elected. (AP Photo/Carolyn Kaster)
Biden gave his most detailed answer yet on the Supreme Court in an interview with Norah O'Donnell set to air Sunday on "60 Minutes."
"If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative — and I will ask them to over 180 days come back to me with recommendations as to how to reform the court system, because it's getting out of whack."
Biden said his plan was "not about court packing," a phrase that has had negative connotations since it was used to describe former President Franklin Delano Roosevelt's 1937 proposal to add seats to the Supreme Court following a slew of unfavorable rulings from conservative justices.
"There's a number of other things that our constitutional scholars have debated and I'd look to see what recommendations that commission might make. ... There's a number of alternatives that go well beyond packing," Biden said.
Republicans, who are rushing to confirm Supreme Court nominee Amy Coney Barrett before the election, were not reassured by Biden's answer.
"And let me guess," tweeted Sen. Josh Hawley, R-Mo., a member of the Senate Judiciary Committee. "This 'commission' would recommend ... court packing. Why doesn't Biden have the guts to just say it."
Still, some outside groups were heartened by Biden's plan. "Federal commissions are famous for being places where good ideas go to die, but given how many Supreme Court reform ideas are floating around these days — from term limits to a balanced bench to changes in jurisdiction — there's little downside to taking a step back and studying them under a strict deadline," said Fix the Court Executive Director Gabe Roth in a statement.
The issue of "court packing" has become a key election issue since Justice Ruth Bader Ginsburg's death last month. An increasing number of Democrats are now willing to consider expanding the court or other "reform" measures in response to the liberal icon's looming replacement by the conservative Judge Barrett.
Even if Democrats win back the Senate and the White House, however, they would likely need to eliminate the legislative filibuster in order to pass a law adding justices to the Supreme Court.
Republicans have warned that such measures would mean the end of the Senate as Congress' deliberative body, and are pushing for a constitutional amendment to keep the number of justices at nine. Before his interview with O'Donnell, Biden was careful not to answer questions about court packing from reporters or Republicans. "Whatever position I take on that, that'll become the issue," Biden said at the first presidential debate.
Biden told O'Donnell in his "60 Minutes" interview that the issue of reforming the court is "a live ball."
"The last thing we need to do is to just turn the Supreme Court into a political football, whoever has the most votes gets whatever they want," he said. "Presidents come and go. Supreme Court justices stay for generations."
--Editing by Stephen Berg.
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