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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 Holder, have vaulted the idea into the national spotlight.
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 McConnell's (R-Ky.) decision to block Merrick Garland, 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 Schumer (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 Kavanaugh, 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 Cornyn (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 Warren (D-Mass.) and Kamala Harris (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 Gillibrand (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 Feinstein (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.
"I'm a practical person. And what I'm looking at right now is how do you stop Donald Trump 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 Bennet (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."