Fox News contributor Jonathan Turley tells ‘Hannity’ why Joe Biden should say whether he’ll expand the Supreme Court

Former Attorney General Eric Holder was slammed Tuesday for referring to one of President Trump’s lower court judicial nominations as “court packing,” as the issue of expanding the number of justices on the Supreme Court has come into the spotlight in recent days.

“THIS is court packing,” Holder, who served as attorney general during the Obama administration, tweeted late Monday, referring to the Senate Judiciary Committee’s intention to hold a committee vote on Kathryn Mizelle, a Trump nominee for the position of U.S. District Judge for the Middle District of Florida.

Committee Chairman Lindsey Graham, R-S.C., whose panel is leading the confirmation hearing this week for Trump’s Supreme Court nominee Judge Amy Coney Barrett, released an agenda for a committee executive business meeting for Thursday, Oct. 15, where the committee intends to vote on Barrett’s nomination, as well as several other lower court appointments.

But Holder’s tweet was met with criticism this week, from reporters and media commentators alike.

Democrats have threatened to add justices if Barrett, who was tapped to fill the vacancy left by the late Justice Ruth Bader Ginsburg, is confirmed ahead of the 2020 presidential election.

The idea of “packing” the court with extra justices – attempted unsuccessfully by President Franklin Delano Roosevelt in 1937 to force through parts of his New Deal that were ruled unconstitutional by the high court – has bubbled away on the fringes of the party for years.

But Democrats are now turning the court-packing accusation around on Republicans, saying that their commitment to filling vacant judgeships, especially a Supreme Court seat this close to an election, “constitutes court-packing.”

“The only court-packing that’s going on right now is going on with Republicans packing the court now, it’s not constitutional what they’re doing,” former Vice President Joe Biden said. “The only packing going on is this court that they packed now by the Republicans.”


At the vice-presidential debate, Vice President Mike Pence pushed Sen. Kamala Harris, D-Calif., on the issue, asking, “if you and Joe Biden are going to pack the Supreme Court?”

Harris finally responded, saying, “Let’s talk about packing the court then.”

“I have witnessed appointments for lifetime appointments to federal courts,” Harris said, referring to her time on the Judiciary Committee during the Trump administration. “People who are purely ideological, who have been reviewed and found to have been not competent, or substandard.”

She went on to say that “of the 50 people Trump appointed to the Court of Appeals – lifetime appointments – no one is Black.”

“Want to talk about packing a court?” Harris said. “Let’s have that discussion.”

But court-packing, even by its traditional, more pernicious definition, is entirely constitutional. The traditional definition of court-packing means expanding the Supreme Court in order to appoint politically-agreeable justices, not what Republicans are doing, which is filling naturally occurring vacancies. 

But Republicans also completely reversed their position since 2016, when they wouldn’t consider Merrick Garland, President Obama’s nominee to the Supreme Court, during an election year. And they are not innocent of accusing the other party of court-packing that actually isn’t court-packing. 

“It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda,” Sen. Chuck Grassley, R-Iowa, then the ranking member of the Senate Judiciary Committee, said of Obama nominations to vacant seats on the D.C. Circuit Court of Appeals in 2013, according to Roll Call.

“I certainly hope that neither the White House nor my Democratic colleagues will instead decide to play politics and seek without any legitimate justification to pack the D.C. Circuit with unneeded judges, simply in order to advance a partisan agenda,” current Senate Judiciary Committee member Sen. Mike Lee, R-Utah, also said in 2013, according to NPR

Democrats “pledged to pack the D.C. court with appointees ‘one way or another,'” Senate Majority Leader Mitch McConnell, R-Ky., said in a floor speech in 2013. 

Fox News’ Tyler Olson contributed to this report.

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