- The Washington Times - Monday, January 25, 2021

Former Attorney General Eric H. Holder Jr. called on Monday for Democrats to “use the power” of their new majority to pack federal courts, a cherished goal of progressives that President Biden and other Democrats largely sidestepped in the 2020 elections.

Having won control of the White House and Congress, now is the time to strike, Mr. Holder urged in a virtual conference on judicial reform hosted by the Brookings Institution.

“It is painfully clear Democrats and progressives are uncomfortable with the acquisition and use of power, while Republicans and conservatives never have been,” Mr. Holder said. “Our courts badly need reforms.”

The panelists did not offer an ideal number of Supreme Court justices. Mr. Holder, who described himself as former President Barack Obama’s “wingman” during his tenure as attorney general, said it would be “totally appropriate” to add new seats to the Supreme Court, given that the number of federal circuits has expanded from nine to 13 since 1869.

“The Republicans have abused their power to give themselves an unfair advantage,” Mr. Holder said. “It is necessary and totally appropriate to add seats.”

Court packing on some levels of government does have political support, given courts have been expanded in Arizona and Georgia and other state legislatures are considering doing the same, said Duke University Law School professor Marin Levy.

“So the norm against it is not as strong as we might think it is, at least in terms of a potentially modest expansion,” she said.

The idea that the Supreme Court should be expanded from the nine justices it has had for more than 130 years became a major issue for liberals after a Republican majority in the Senate blocked a vote on Obama nominee Merrick Garland and former President Donald Trump appointed three justices during his term.

During the campaign, however, Mr. Biden and other Democrats generally shied away from taking a stance on the issue.

Mr. Holder and other liberal lawyers also spoke in favor of expanding appellate courts, as well as imposing term limits for federal judges. Currently, federal judgeships are lifetime appointments.

All of the proposals are expected to be explored by Mr. Biden’s upcoming commission on the federal judiciary, although the makeup and focus of that commission are not clear. It is the makeup that will provide the key signal, said Christopher Kang, a former lawyer in the Obama administration who now directs the left-wing Demand Justice.

Daniel Epps, a law professor at Washington University in St. Louis, called the commission “a good feint” by Mr. Biden, but said it leaves open the question of whether Mr. Biden “really wants to do anything with the court.”

Preserving the status quo on the Supreme Court would be a move Americans strongly support, according to polling by the Coalition to Preserve an Independent Supreme Court, which is pushing a “Keep Nine” campaign.

The coalition’s polling showed 62% favored keeping the number of justices at nine while only 18% strongly favored expanding the court, coalition Director Roman Buhler said.

“It’s a bad idea today and it will be a bad idea tomorrow,” Mr. Buhler said. “Our sense is that it is about 50/50 whether they try to pack the Supreme Court, but we think we will have some time to build momentum against it.”

That momentum came up during Monday’s discussion, as the liberal panelists wondered whether progressives’ furor over Senate Republicans’ block of Mr. Garland’s nomination will fade.

Similarly, the panelists discussed a perceived fall in the public’s support of the Supreme Court and placed the blame for that exclusively on Republicans and Senate Minority Leader Mitch McConnell, Kentucky Republican. As majority leader in 2016, Mr. McConnell held open the Supreme Court vacancy created by the death of Justice Antonin Scalia and blocked action on Judge Garland. Meanwhile, he moved on Mr. Trump’s nomination of Amy Coney Barrett after Justice Ruth Bader Ginsburg’s death last September.

“What Mitch McConnell and Republicans have done is create a crisis of legitimacy,” Mr. Holder said.

Political jockeying over the appointment of federal judges and Supreme Court justices has reached a new level of partisanship ever since Democrats derailed President Reagan’s nomination of Robert Bork in 1987.

Under President Obama, Democrats erased the Senate filibuster, or 60-vote threshold, over federal judiciary nominations to allow Mr. Obama to stack the D.C. Circuit Court of Appeals with progressive judges. Republicans then erased the filibuster for Supreme Court nominees during Mr. Trump’s presidency.

In addition, the Senate has increasingly bypassed the traditional courtesy known as a “blue slip,” which allowed a senator to block a nominee in their home state.

Mr. Kang repeatedly blamed Mr. McConnell for the issues in the process of nominating and approving federal judges, but said he was reluctant to restore the “blue slip” to binding status. Doing so might allow Republican Sen. Ted Cruz of Texas to block the nomination of a Lone Star State jurist and give Missouri Republican Sen. Josh Hawley a voice, both developments he opposes.

Mr. Epps said some of the Supreme Court’s problems could be solved if it could be insulated more from politics, because the “most destructive” injury to the court’s legitimacy is the public’s belief that justices are merely robed politicians.

Term limits would go a long way toward offering that needed protection, the panelists agreed, with Mr. Holder proposing 18 years — three Senate terms — as a good time frame.

But while term limits for federal judges may be the most popular change to the judiciary, it is also the one with probably the biggest constitutional hurdle, said Susan Hennessey, the Brookings Institution fellow who moderated the discussion.

• James Varney can be reached at jvarney@washingtontimes.com.

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