Eric Holder Says Next Democratic President Should Consider Court Packing

Former Attorney General Eric Holder said Thursday that the next Democratic president should “seriously” consider adding additional seats to the United States Supreme Court should they be elected alongside a Democratic majority in the Senate.

The comments came during a discussion Holder held with the Yale Law National Security Group. There was no recording of the event and only a snippet of what Holder said was tweeted out publicly. But a spokesman for Holder confirmed to The Daily Beast that he did embrace the idea of court-packing.

“In response to a question, Attorney General Holder said that given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations,” said spokesman Patrick Rodenbush.

Holder’s willingness to entertain the idea of court packing makes him one of the most senior Democratic officials to do so. To date, virtually all elected Democrats have either ignored the proposal or dismissed it out of hand. The one 2020 Democratic candidate who has said that court packing should be a consideration is South Bend Mayor Pete Buttigieg.

“It’s no more a departure from norms than what the Republicans did to get the judiciary to the place it is today,” Buttigieg has said. “Bold, ambitious ideas need a hearing right now."

Calls for Democrats to embrace court packing—adding additional seats to the Supreme Court and subsequently filling them—have come in response to anger within the party’s base over how Republicans in the Senate handled the Supreme Court nomination process over the past few years. President Barack Obama’s last nominee, Merrick Garland, was held up by Senate Majority Leader Mitch McConnell during the last year of Obama's presidency.

After Donald Trump won election in 2016, McConnell used a measure previously adopted by Harry Reid to change the rules of the Senate to allow for a simple majority vote for confirmation of Supreme Court nominees. Subsequently, Trump was able get his two nominees to the Court—Neil Gorsuch and Brett Kavanaugh—confirmed with fewer than 60 votes.

Those confirmations have cemented a conservative-leaning majority for—in all likelihood—years to come, leaving Democrats with few if any prospects for affecting the most important judicial body in the land. Progressives who have championed the idea of court packing as a remedy embraced Holder’s suggestion that this would be an appropriate response to consider.

“More and more Democrats are becoming convinced that we cannot resign ourselves to the third branch of government being captive to partisan Republican forces for the next 30 years,” said Brian Fallon, executive director of the progressive group Demand Justice. “Any progressive reforms that a Democratic president would pursue in 2021 would come under threat from the Supreme Court. Accepting the status quo on this issue is not going to fly and there is becoming a consensus that some type of reform needs to happen.”