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Court-packing becomes new litmus test on left

Whether or not to expand the Supreme Court is emerging as a key litmus test in the crowded 2020 Democratic presidential primary field.

Once dismissed as a fringe idea, reforming the nation’s highest court is gaining traction with a growing number of Democratic 2020 candidates as progressive outside groups and high-profile officials, including former Attorney General Eric HolderEric Himpton HolderAlarm grows over Trump team's efforts to monitor polls The Hill's Campaign Report: Biden on Trump: 'He'll leave' l GOP laywers brush off Trump's election remarks l Obama's endorsements Obama endorses Warnock in crowded Georgia Senate race MORE, have vaulted the idea into the national spotlight.

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The courts have emerged as a lightning rod during the Trump administration for the Democratic Party’s resurgent base, which remains deeply bitter over Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump expressed doubt to donors GOP can hold Senate: report Senators battle over Supreme Court nominee in rare Saturday session Sunday shows preview: Trump, Biden gear up for final sprint to Election Day MORE’s (R-Ky.) decision to block Merrick GarlandMerrick Brian GarlandSenators battle over Supreme Court nominee in rare Saturday session McConnell tees up Barrett nomination, setting up rare weekend session Republicans advance Barrett's Supreme Court nomination after Democrats boycott committee vote MORE, President Obama’s final Supreme Court nominee.

Supporters argue that sweeping reforms, including expanding the number of justices, are needed to counteract Trump and McConnell, who they say have “packed” the judicial system with conservative judges — including two Supreme Court justices and a record number of influential appeals court picks.

Chris Kang, the chief counsel for Demand Justice, said that the intraparty debate being driven by the party’s 2020 race made it an “incredibly important and central time to be having this discussion” and that waiting until 2021 to lay the groundwork would “be too late.”

“I think the question is whether or not they’re out of touch with just how partisan and illegitimate this Supreme Court has become in its willingness to throw out precedent and sort of the way it's undermining the rule of law. They need to come to terms with that in order to really help lead and to help push the progressive policy platform forward,” he added of the party’s 2020 contenders.

Leah Greenberg, a co-executive director of Indivisible, added that 2020 candidates who are expressing an openness to expanding the Supreme Court were “exactly right,” because “Republicans have rigged the courts and we need to make them fair and credible again.”

Though Democratic grievances on the Supreme Court link back to Garland’s stonewalled nomination, tensions over the party’s court strategy have escalated during the Trump administration. Progressives skewered Senate Minority Leader Charles SchumerChuck SchumerTrump expressed doubt to donors GOP can hold Senate: report Trump announces opening of relations between Sudan and Israel Five takeaways on Iran, Russia election interference MORE (D-N.Y.) when he agreed to a nominations package last year that included 15 judicial nominees. Democrats announced in December that they would not agree to an end-of-the-Congress deal on Trump’s court picks.

Meanwhile, Republicans nixed the 60-vote filibuster in 2017 to confirm Justice Neil Gorsuch to succeed the late Justice Antonin Scalia, in what many Democrats view as a stolen seat. Justice Brett KavanaughBrett Michael KavanaughMurkowski says she will vote to confirm Barrett to Supreme Court on Monday Collins says running as Independent 'crossed my mind' Clean energy opportunities in a time of crisis MORE, Trump’s second pick, was confirmed by the narrowest margin in the Senate for a Supreme Court nominee since 1881 amid allegations of sexual assault and fears by progressives that he would tip the balance of the court to the right for decades.

“I think the Kavanaugh nomination has put a fire under progressives when it comes to the Supreme Court. It’s a recognition of the enormous impact the court has on our lives, the capacity to undermine key progressive victories like voting rights, controlling money in politics, reproductive rights and so forth,” said Caroline Fredrickson, the president of the progressive American Constitution Society.

She added that it’s “not written in stone that the court has nine seats.”

A growing number of the party’s 2020 candidates are showing an openness, if not an outright commitment, to expanding the Supreme Court or making other judicial reforms if they win the White House.

South Bend, Ind., Mayor Pete Buttigieg and former Texas Rep. Beto O’Rourke have both signaled they could support expanding the court.

“This central objective that is to prevent the Supreme Court from continuing on this trajectory to become basically ruined by being a nakedly political institution,” Buttigieg said during an interview with "Pod Save America." “This idea of adding justices is one way to do it.”

One idea, talked up by both O’Rourke and Buttigieg, would reform the court so that Republicans appointed five justices and Democrats appointed five justices. The 10 justices would then mutually agree on an additional five, bringing the total number on the court to 15.

Republicans have lashed out at talk of expanding the courts.

McConnell has dismissed it as Democrats “scrounging through the ash-heap of American history” for their ideas. Sen. John CornynJohn CornynBiden's oil stance jars Democrats in tough races The Hill's Campaign Report: 2020 spending wars | Biden looks to clean up oil comments | Debate ratings are in The Hill's Campaign Report: Obama to hit the campaign trail l Biden's eye-popping cash advantage l New battleground polls favor Biden MORE (R-Texas), a member of GOP leadership, on Monday labeled talk of expanding the Supreme Court “radical.”

But backed by support from progressive outside groups, Buttigieg and O’Rourke have helped put pressure on the rest of the field to take a position.

Both Sens. Elizabeth WarrenElizabeth WarrenWhat do Google, banks and chicken salad have in common? Final debate: War Admiral vs. Seabiscuit Biden defends his health plan from Trump attacks MORE (D-Mass.) and Kamala HarrisKamala HarrisTrump knocks idea of a 'female socialist president' Sanders hits back at Trump's attack on 'socialized medicine' Watch live: Biden participates in HBCU homecoming MORE (D-Calif.) told Politico that the option should be on the table as part of a larger conversation among Democrats about the direction of the American judicial system.

Sen. Kirsten GillibrandKirsten GillibrandInternal Democratic poll: Desiree Tims gains on Mike Turner in Ohio House race Hillicon Valley: Facebook, Twitter's handling of New York Post article raises election night concerns | FCC to move forward with considering order targeting tech's liability shield | YouTube expands polices to tackle QAnon Democrats question Amazon over reported interference of workers' rights to organize MORE (D-N.Y.) told "Pod Save America" that the idea was “interesting” and she would “need to think more about it.”

They are three of several Democratic senators who are running for the party’s 2020 nomination, creating a political headache to Democratic leadership.

To add seats, a Democratic president would have to be able to get legislation through the Senate, including likely having to convince Democratic senators to go “nuclear” on the 60-vote filibuster if they are going to force through the change.

Democrats not in the party’s presidential mix are showing few signs of wanting to get into the middle of the fight as they face their own battle to reclaim the upper chamber during next year’s election.

Schumer has not taken a position in the party’s current fight. A spokesman didn’t respond to a request for comment on Monday.

Sen. Dianne FeinsteinDianne Emiel FeinsteinDemocrats to boycott committee vote on Amy Coney Barrett's Supreme Court nomination The Senate should evoke RBG in its confirmation of Amy Coney Barrett The Hill's Morning Report - Sponsored by Goldman Sachs - Pelosi, Mnuchin push stimulus talks forward, McConnell applies brakes MORE (Calif.), the top Democrat on the Senate Judiciary Committee, described the current number of justices as “appropriate.” Asked if she would oppose expanding the court, an aide on Monday declined to comment further on “any hypothetical future actions.”

Progressives have been frustrated by the caucus’s stance toward Trump’s judicial nominations. A report card of senators by Demand Justice released late last week gave 16 Democratic senators a D or an F for their stance on Trump’s nominees.

Asked about expanding the Supreme Court, Sen. Amy KlobucharAmy KlobucharStart focusing on veterans' health before they enlist Durbin says he will run for No. 2 spot if Dems win Senate majority Democrats seem unlikely to move against Feinstein MORE (D-Minn.), who was given an F by the group, told NBC’s Chuck Todd during an interview released Sunday that “I think you could consider it.”

“I’m a practical person. And what I’m looking at right now is how do you stop Donald TrumpDonald John TrumpObama slams Trump in Miami: 'Florida Man wouldn't even do this stuff' Trump makes his case in North Carolina, Ohio and Wisconsin Pence's chief of staff tests positive for COVID-19 MORE from putting on clearly unqualified people, clearly partisan people like nominees Kavanaugh and Gorsuch to the Supreme Court,” she said. “Well, the best way you stop it is by taking back the White House.”

Progressives knocked Sen. Michael BennetMichael Farrand BennetCotton mocks NY Times over claim of nonpartisanship, promises to submit op-eds as test Democrats sense momentum for expanding child tax credit OVERNIGHT ENERGY: House Democrats tee up vote on climate-focused energy bill next week | EPA reappoints controversial leader to air quality advisory committee | Coronavirus creates delay in Pentagon research for alternative to 'forever chemicals' MORE (D-Colo.), who is mulling a White House run, after The Washington Post reported that he “slammed his head on the table four times” when asked about some of the party’s 2020 candidates embracing expanding the Supreme Court.

“Bennet voted to advance Neil Gorsuch, who approved Trump's travel ban, and voted to gut unions, last term,” Brian Fallon, the executive director of Demand Justice, wrote in a tweet Monday. “Overall Bennet voted for Trump judges 67 [percent] of the time last Congress. Maybe he should sit this one out.”