Dems picked the wrong
senator for Senate Judiciary leadership
They need a fighter on
the committee, not a go-alonger.
January
7, 2025 at 7:45 a.m. ESTToday at 7:45 a.m. EST
5 min
At a White House ceremony last
week, then-Senate Majority Leader Charles E. Schumer (D-New York) and then-Judiciary
Committee Chairman Dick Durbin (D-Illinois) couldn’t stop congratulating
themselves on the Senate’s confirmation of 235 federal judges during Joe
Biden’s presidency. Durbin declared, “We are proud of the fact that these
nominees have bipartisan support. More than 80 percent of them received
bipartisan support.” (It was not clear why it should matter that Republicans
supported some of them.) Schumer praised Durbin for “nudging him” to get judges
confirmed.
Given their self-regard, it is hardly a surprise that
Durbin was selected as the ranking Democrat on the Judiciary Committee now that
his party has moved into the minority. This was a mistake, and their
celebration was excessive.
Democrats were in the majority (albeit just with Vice
President Kamala Harris’s vote for the past two years) throughout Biden’s
tenure. Of course they should have confirmed the president’s
nominees. They should also have confirmed a batch of others whom they instead
abandoned: 3rd Circuit nominee Adeel Mangi, 4th Circuit nominee Ryan Park, 6th
Circuit nominee Karla Campbell and 1st Circuit nominee Julia Lipez.
Republicans waged a reprehensible Islamophobic smear campaign against Mangi and got away with it. As for Park,
Republican senators “blue-slipped” him, allowing home-state senators to
exercise a veto on the nominee (although Republicans didn’t honor home-state
blue slips when they were in the majority), leaving some legal experts exasperated:
“It just doesn’t make any sense to me,” said Carl Tobias,
chair of the University of Richmond School of Law. “Why are they falling on
their sword?”
He is not alone. (In 2023,
I vigorously denounced Durbin’s timidity on blue slips.)
This was part of a familiar pattern. Durbin time and time
again refused to use the full powers of his position to defend the rule of law
and rein in the rogue Supreme Court. In 2023, he politely sent a letter asking Chief
Justice John G. Roberts Jr. to appear before
the committee to answer questions about an ethics mandate. Roberts declined to
come; Durbin did not press the issue. The next year Durbin asked Roberts for a meeting regarding Justice Samuel A. Alito Jr.’s egregious
ethics missteps (a meeting that Roberts also declined) — and then, again, let it drop. To no avail, Durbin
pleaded with Alito to recuse himself from cases concerning the failed Jan. 6, 2021, insurrection. Subpoenas and hearings —
the normal tools wielded by committee chairmen — were not deployed.
As I wrote last
May, “The long-term imperative must be to educate the public about the extent
to which the court has been compromised. Only then can democracy defenders
build consensus for serious reform such as term limits or the appointment of
additional judges to rebalance the court and restore its stature.” Durbin
failed in this regard.
The notion that Durbin could either get
lots of judges confirmed or use the bully pulpit is misguided. A competent and
aggressive chairman can do both. After all, the majority gives you the full
array of powers to render advice and consent and conduct
oversight.
“Senator Durbin was a distinct disappointment as Chair of
Senate Judiciary when Democrats were in the majority and is a far weaker choice
than Senator Whitehouse would have been as ranking member of that key Senate
Committee now that the Republicans are in the driver’s seat,” constitutional
scholar Laurence Tribe told me in an email. “Damage control will be essential
with Trump and Musk driving the agenda on judicial appointments and Justice
Department issues. There’s every reason to worry that Durbin will be a
lackluster leader of the opposition to the MAGA wrecking ball as it smashes
against our fragile system of checks and balances.”
When it came to investigating Justice Clarence Thomas’s
financial impropriety, it was Sen. Sheldon Whitehouse (D-Rhode Island) and Rep. Hank
Johnson (D-Georgia) who “sent a letter calling
on the Judicial Conference to refer Supreme Court Justice Clarence Thomas to
the U.S. Attorney General for potential violations of the Ethics in Government
Act 1978.” When the Judicial Conference refused to do so, Whitehouse was the
one to write a blistering response:
The Judicial Conference response contains a number of
inconsistencies and strange claims, and ultimately doesn’t address the only
real question the Judicial Conference should’ve been focused on for the nearly
two years it spent on this matter: Is there reasonable cause to believe that
Justice Thomas willfully broke the disclosure law? By all appearances, the
judicial branch is evading a clear statutory duty to hold a Supreme Court
justice accountable for ethics violations.
Whitehouse has consistently demonstrated leadership and the
determination to expose the financial and ethical corruption of a rogue and
hyper-partisan Supreme Court. In floor speeches, Whitehouse has been the key
player in exposing the right-wing scheme to
capture the federal courts. He also has been at the forefront of efforts to
pass a mandatory Supreme Court ethics code and impose term limits.
In short, if Democrats wanted to wage an unabashed defense
of the rule of law, hold Republicans’ feet to the fire, lead aggressive
confirmation hearings on absurd executive branch nominees (e.g., Kash Patel for
FBI director) and use every tool to slow or stop unfit executive and judicial
branch nominees, then Whitehouse, not Durbin, should have been put
in the ranking Democrat’s chair.
“But seniority!” you
may cry. Seniority is not the sole consideration in awarding
committee chairmanships. (The practice has been to give “due consideration” to
seniority of service in the Senate as well as “the preferences of Democratic
Senators, and uninterrupted service on the committee(s) in question”). In any
event, party leaders have worked their will to move aside chairmen (e.g., Dianne Feinstein)
who were not up to the job.
In the case of the Senate Judiciary Committee, Democrats
chose the path of least resistance (i.e., stick with seniority) to reinstall
Durbin — who all too often took the path of least resistance against
Republicans and Supreme Court malfeasance.
We are entering a fraught time for the rule of law. Having
invested Durbin with such a prominent role in defense of democracy, “it’s now
up to him to disprove those of us who doubt his resolve and fear his
fecklessness,” Tribe said. The confirmation hearings for Patel and attorney
general nominee Pam Bondi will give us a hint as to whether Durbin
is up to the job.
