Democratic nominee Joe Biden gave a vague answer during the presidential debate Tuesday night when pressed on his response to members of his own party pushing for court packing amid taunts from President Trump.
"Are you willing to tell the American people tonight whether or not you will support either ending the filibuster or packing the court?" Fox News anchor and moderator Chris Wallace asked Biden, alluding to the possibility of adding more Supreme Court justices to counter a conservative tilt.
"Whatever position I take on that that will become the issue. The issue is the American people should speak. You should go out and vote. You're in voting now. Vote and let your senators know how you strongly you feel," Biden said.
"Are you going to pack the court?" Trump interjected. "He doesn't want to answer the question."
"I'm not going to answer the question because the question is ... will you shut up, man?" Biden said as Wallace moved on to another segment of questioning.
The fight over the seat vacated by the late Justice Ruth Bader Ginsburg has thrown the Supreme Court into focus once again. Republicans have the chance to solidify the court's rightward lean by replacing Ginsburg with a nominee from President Trump — a prospect that has roiled Democrats and led them to re-up their threats to "expand the Supreme Court" if they take back the Senate majority.
"Mitch McConnell set the precedent," Sen. Ed Markey, D-Mass., said in September, referring to the Republicans' 2016 move to block then-President Barack Obama's Supreme Court nominee during a presidential election year. "No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court."
Court packing has not been tried since President Franklin Delano Roosevelt threatened to expand the bench to 15 justices due to his frustration with the Supreme Court regularly thwarting his New Deal programs on constitutional grounds.
Biden's refusal to answer the question quickly became a talking point for Republicans, including Sen. Thom Tillis, R-N.C., who is polling poorly against Democratic challenger Cal Cunningham.
"Joe Biden continues to leave the door open to packing the Court," Tillis wrote on Twitter on Wednesday. "Unless Cal Cunningham denounces Biden, then North Carolinians should fully expect him to side with his benefactor [Senate Minority Leader Chuck] Schumer [and] vote to pack the Court with activists who will impose the liberal agenda from the bench."
Sen. Tom Cotton, R-Ark., made the same point to "Fox & Friends" on Wednesday morning.
"The reason why they don't want to answer it is clearly is in their hearts and they know on their left-wing flank the answer is yes. They do want to pack the court because they want to fundamentally restructure the nature of American government and that that would be extremely unpopular and probably cost them the election," Cotton said.
Republicans will try to get Trump's nominee Judge Amy Coney Barrett confirmed in October, with hearings beginning on Oct. 12, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told Fox News.
Fox News' Tyler Olson contributed to this report.