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Biden refuses to say whether he would support expanding Supreme Court

Democratic nominee Joe BidenJoe BidenMore than 300 military family members endorse Biden Five takeaways from the final Trump-Biden debate Biden: 'I would transition from the oil industry' MORE refused on Sunday to answer a question about whether he’d back expanding the Supreme Court to have more justices.

A reporter asked the former vice president his thoughts on the plan supported by some Democrats to consider expanding the Supreme Court if Republicans move forward with confirming President TrumpDonald John TrumpMore than 300 military family members endorse Biden Five takeaways from the final Trump-Biden debate Biden: 'I would transition from the oil industry' MORE’s nominee as Election Day looms. 

“I know you’re gonna be upset with my answer, but what I’m not gonna do is play the Trump game, which is a good game he plays – take your eye off the issue before us,” Biden responded. 

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“If I were to say yes or no to that, that becomes a big issue,” he added. “That’s the headline here.”

The Democratic presidential candidate emphasized that he’s focused on Trump’s nomination and the expected confirmation hearings for Amy Coney Barrett. 

“I’m focused on making sure the American people understand that they’re being cut out of this process that they’re entitled to be a part of,” Biden said. “And the cut out designed in order to take away the ACA and your health care in the midst of a pandemic.”

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Biden's Sunday comments centered around a warning by Democrats about how Trump's nominee could jeopardize the Affordable Care Act, which the Supreme Court is scheduled to hear a challenge to close to the election. 

Trump nominated Barrett to fill the Supreme Court vacancy after Justice Ruth Bader GinsburgRuth Bader GinsburgThe Hill's Campaign Report: Trump, Biden face off for last time on the debate stage Clean energy opportunities in a time of crisis Trump when asked if he'd be kinder in his second term: 'Yes, I think so' MORE died on Sept. 18. He officially announced the nomination 38 days before Election Day. 

Several progressive activists and lawmakers have proposed expanding the number of justices on the Court if Republicans confirm a justice before the election, which would bring the Court to a 6-3 conservative majority. 

In order to do that, a Democratic-led Senate would need to get rid of the 60-vote legislative filibuster and then pass a bill adding seats to the Court.

After Ginsburg’s death, Senate Minority Leader Chuck SchumerChuck SchumerFive takeaways on Iran, Russia election interference Pelosi calls Iran 'bad actor' but not equivalent to Russia on election interference Schumer says briefing on Iranian election interference didn't convince him effort was meant to hurt Trump MORE (D-N.Y.) has said that “nothing is off the table” if Republicans fill the vacancy.

But Senate Democrats have tampered down on discussions on expanding the Supreme Court, which has had nine justices since 1869, with several labeling the idea as a distraction from the current partisan battle over Ginsburg’s seat.