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Biden hints at opposition to court packing as pressure builds

Joe BidenJoe BidenTrump says he'll leave White House if Biden declared winner of Electoral College The Memo: Biden faces tough road on pledge to heal nation US records 2,300 COVID-19 deaths as pandemic rises with holidays MORE is hinting that as president he would not be in favor of expanding the Supreme Court, giving new insight into how the Democratic nominee might govern as he tiptoes through a political minefield that has dogged him on the campaign trail for weeks.

Biden has still not answered equivocally as to whether he’d be open to “court packing” as Senate Republicans move quickly on the nomination of Amy Coney Barrett, who is on track to become President TrumpDonald John TrumpVenezuela judge orders prison time for 6 American oil executives Trump says he'll leave White House if Biden declared winner of Electoral College The Memo: Biden faces tough road on pledge to heal nation MORE’s third justice confirmed to the Supreme Court.

Progressives are eager to see Democrats respond by adding their own justices to the Supreme Court if they win the White House and Senate.

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If Biden sides with the left, he risks turning off independent swing voters and giving ammunition to Trump’s campaign, which has accused him of being a “tool of the radical left.” If Biden announces his opposition to expanding the court, he risks alienating liberals only three weeks out from Election Day.

In an interview with a local Cincinnati affiliate late Monday night, Biden, who has steadfastly refused to answer the question, acknowledged that he’s “not a fan” of court packing.

But he also didn’t take it off the table and instead accused Republicans of packing the courts by jamming through a Supreme Court nominee late in an election cycle.

“I’m not a fan of court packing, but I don’t want to get off on that whole issue. I want to keep focused,” Biden told WKRC. “The president would like nothing better than to fight about whether or not I would in fact pack the court or not pack the court, et cetera. The focus is, why is he doing what he’s doing now?”

That answer was a shift for Biden on the campaign trail, who had until then declined to give any insight whatsoever into his views on court packing.

The question had become a problem for the campaign, as Biden and his running mate, Sen. Kamala HarrisKamala HarrisThe Memo: Biden faces tough road on pledge to heal nation Biden can rebuild trust in our justice system by prioritizing prosecutorial reform Harris says she has 'not yet' spoken to Pence MORE (D-Calif.), have appeared evasive at their debates and in media interviews.

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Over the past week, Biden has said that voters will know his opinion on court packing “when the election is over.” He also got into a testy exchange with a reporter who asked if voters “deserve to know” where he stands.

“No they don’t deserve — I’m not going to play his game,” Biden said.

In both instances, the remarks were picked up by the Trump campaign as evidence of Biden not shooting straight with voters about an important issue.

Adding to the scrutiny, comments Biden made in 1983 began to circulate in recent days, in which the then-senator called President Franklin Roosevelt’s attempt to expand the Supreme Court in 1937 a “bonehead idea.”

Biden’s allies say that with a 90-minute town hall coming up on Thursday and a second presidential debate next week, it was becoming unreasonable to think that he could go the final weeks without giving some sort of insight into his thinking.

"We didn't answer because we don't like talking about hypotheticals," said one Biden ally close to the campaign. "The campaign purely did not want to make it a topic until we need to get there. Barrett is still going through the process. Let's wait till we get through this process.”

But the ally said "the drumbeat" around the court-packing question had become too much to ignore.

"Now we can somewhat move on," the ally said, adding, "we may have let it linger too long, so it'll still be out there.”

Progressives don’t appear angered by Biden’s response, saying they think he’s keeping everything on the table and that it’s possible he could change his thinking if Barrett is confirmed and Democrats sweep into power.

“Times change, realities change and people’s opinions on Democratic reforms can change,” said Neil Sroka, a strategist for the progressive group Democracy for America, one of 20 progressive groups that signed a letter calling on court reform to be included in the Democratic platform.

“Biden may not be a fan of expanding the court now, but I know he’s also not a fan of Republicans jamming through a right-wing extremist less than 30 days before an election for a lifetime appointment to Supreme Court. There are things we have to do in life even if we’re not fans of them. That’s being a leader and I suspect Joe Biden recognizes that.”

Other allies read the remarks as evidence Biden will not be dragged to the left.

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"This is who he is," said one Biden fundraiser. "No, he's not going to veer to the left. He has always been a centrist. Anything else just isn't who he is. That's why it's laughable when Donald Trump tries to label him as a tool of the left. He hasn't ever been that guy. This isn't going to change."

Democratic Senate candidates have also struggled to answer the court-packing question.

Sen. Cory GardnerCory GardnerHillicon Valley: Trump fires top federal cybersecurity official, GOP senators push back | Apple to pay 3 million to resolve fight over batteries | Los Angeles Police ban use of third-party facial recognition software Senate passes bill to secure internet-connected devices against cyber vulnerabilities Democrats vent to Schumer over Senate majority failure MORE (R-Colo.) scored a viral moment at his debate over the weekend against former Colorado Gov. John HickenlooperJohn HickenlooperDemocrats frustrated, GOP jubilant in Senate fight Chamber-endorsed Dems struggle on election night OVERNIGHT ENERGY: Down ballot races carry environmental implications | US officially exits Paris climate accord  MORE (D) when he said he opposes court packing and then ceded the rest of his time to Hickenlooper. Hickenlooper laughed and stumbled and didn’t give an answer until the buzzer rang.

Democrats say candidates need to be on the offensive and to follow Biden’s lead by responding to any question about court-packing by accusing Republicans of stacking the courts.

“I think Democratic candidates need to turn this around on Republicans and not be so sheepish about it,” said Mark Longabaugh, a veteran Democratic operative. “Republicans are packing the court against past precedents and their own past promises. They want to strike down years of precedent and undermine the laws as they stand. Biden has provided a good framework now for Democrats not to be tripped up by this. We can’t be on the defensive here.”

The Trump campaign says they still intend to hammer Biden over the issue, calling his remarks in Cincinnati a "dodge."

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“That’s not an answer,” said Trump campaign spokesman Tim Murtaugh. “Joe Biden continues to dodge the question and show his arrogance and disdain for the American people. Would he support a partisan overthrow of one-third of the federal government or not? And where is his list of prospective Supreme Court nominees? President Trump has been completely transparent regarding judicial nominees and the people deserve no less from Joe Biden.”

Democrats say they’re not sweating it, believing Biden’s strategy of sticking to speaking about the economy and the coronavirus is paying off. Biden leads on almost every issue important to voters, and he’s catching up with Trump on who would better manage the economy.

“Trump and his allies continue to bring up court packing in an attempt to change the narrative and slow Biden's moment,” said Joe Caiazzo, a Democratic strategist.

“The Biden campaign has continued to successfully deliver their message, in the midst of an economic and public health crisis, of restoring decency to our political system while working to address kitchen table issues. At this point, it is clear their message is resonating. In presidential campaigns, the only thing that really matters is winning 270 Electoral College votes, it appears that Biden's message has best positioned him to accomplish just that.”