Illinois Sen. Dick Durbin was second in command to Senate Democratic Leader Harry Reid for 12 years. When Reid announced he wouldn’t run for another term in 2015, though, he endorsed Sen. Chuck Schumer, then the No. 3 Democrat in the Senate, to replace him as minority leader. Durbin could see the writing on the wall, and also endorsed Schumer, his longtime roommate in Washington, D.C. Durbin was an experienced legislator, and well liked by his caucus. But Schumer was a political animal with no qualms about getting his hands dirty. When you’re a rank-and-file senator putting your political life in a leader’s hands, you want a killer, which is what the Democratic conference felt they were getting with the New Yorker.
Eight years later, though, Durbin is at the height of his stature in the Senate. He’s still the Senate majority whip, tasked with keeping Democrats’ narrow majority united on close votes. At least equally as importantly, he’s in charge of Senate Democrats’ primary agenda in this divided Congress: Rebalancing, and conducting oversight on, a federal judiciary that moved historically to the right during the Trump presidency, as chairman of the Senate Judiciary Committee.
Durbin may not be the Democratic leader, but he has accumulated much power (some of his colleagues think too much). And with great power, comes … all sorts of people yelling at you about all sorts of things. Durbin is currently facing questions about his willingness to push through potential Republican obstruction to remake the federal courts, as well as his commitment to rein in the current, scandalized Supreme Court. How far is he willing to go?
Durbin took over as the top Democrat on the Senate Judiciary Committee at the beginning of 2021. The previous ranking member, California Sen. Dianne Feinstein, was deemed to have blown the Amy Coney Barrett Supreme Court confirmation hearings the previous fall, while questions about the now-89-year-old’s age were already abounding. Durbin was effective as chairman of the committee in the first two years of Joe Biden’s presidency, keeping the conveyor belt of judicial nominations humming apace despite a committee split equally between Democrats and Republicans.
In this Congress, though—even with a slightly larger Democratic majority—things have been a little tougher. In late February, Feinstein was diagnosed with shingles and hospitalized. Until this week, her office says that she’d been working from home in San Francisco after being released from the hospital in March. On Tuesday it was reported that she was finally returning to Washington to conduct actual Senate business, which is fascinating as it pertains to Durbin’s particular brand and powers of persuasion. Feinstein’s extended absence from the Senate caused a slowdown in Democrats’ ability to move some of its more partisan nominees out of committee (although there are still plenty of nominees available for Senate floor votes now), and her return sets up new opportunities—and potential headaches—for Durbin.
The bigger, looming concern for Democrats’ ability to rebalance the federal courts is a coming clash over the “blue slip” practice, an classically stuffy tradition that allows senators to block judicial nominees in their home states. Of the remaining district court vacancies Democrats hope to fill this Congress, a much higher percentage of them are in red states than the ones approved in the last Congress. Progressive activist groups predict pure Republican obstructionism going forward, and insist that Durbin do away with the “blue slip” tradition for district court nominees altogether.
Durbin hasn’t committed to such a move yet—and frankly, there are only a couple of nominees knowingly held up for blue-slip reasons at the moment—though he’s keeping the threat on the table to hold Republicans in line. “I want to keep the blue slip,” Durbin told CNN in February. “I think it’s a good thing, but we need cooperation.”
Durbin is far from alone in that thinking among Judiciary Democrats. New Jersey Sen. Cory Booker, for example, also thinks blue slips are a “good thing,” as the practice prevented President Donald Trump from nominating a bunch of yahoos for New Jersey courts without his say. At the same time, former Republican Judiciary Chairman Lindsey Graham very readily cast aside blue-slip norms for appellate nominees in the face of the slightest Democratic obstruction the last time the GOP was in charge of the Senate. (He did, however, uphold the practice for district nominees.) Yet, as Democrats look ahead to an abysmal 2024 Senate map and a small-state bias that gives Republicans a structural advantage in the chamber, they’re less than keen to do away with minority rights without exhausting every other option first. (Progressive activists call it naïve to think Republicans won’t get rid of those rights the moment it benefits them.)
How Republicans play their hand on judicial nominations going forward will do much to determine Durbin’s course of action on blue slips. But there’s more to Durbin’s job right now than the ins and outs of advancing nominees.
One of the biggest stories in the country right now, thanks to revelations about billionaire Harlan Crow lavishing gifts on Justice Clarence Thomas which he’s refused to disclose, is that members of the Supreme Court do whatever they want, with little accountability. There is significant public pressure, then, to bring some accountability to the Supreme Court. Durbin, as Senate Judiciary Committee chairman, is the guy who’d have to bring it.
But what accountability is available to him?
Congress could pass a law to tighten ethics or recusal requirements on the Supreme Court. We mean “could” in the most general sense, though, in that Congress is a lawmaking body that does have the power to make laws. But Republicans love the current Supreme Court and have no interest in passing a law restricting it in any sense. So Durbin, though he could try to put together a SCOTUS ethics bill, would be drafting a bill to nowhere.
The other option, as more of a theatrical exercise, would be to haul Supreme Court justices before Durbin’s committee and grill them on their lax ethical codes. Durbin tried this, at first, by writing a polite letter to Chief Justice John Roberts asking him to testify before the Judiciary Committee. Roberts responded with a polite letter of his own telling Durbin to pound sand.
The more aggressive option would be to subpoena a Supreme Court justice. That would likely make Durbin, and plenty of other senators concerned about the separation of powers, deeply uncomfortable. For weeks, Durbin had a convenient out: He couldn’t approve a subpoena so long as Sen. Feinstein was away from the Senate, as tie-breaking votes can’t be made by proxy in the committee.
Durbin had been polite in speaking about Feinstein’s absence, noting that she’s been having a particularly tough time. But he did not deny that her health-related absence was getting in the way of committee decisions.
“I want to treat Dianne Feinstein fairly. I want to be sensitive to her family situation and her personal situation,” Durbin said on CNN over the weekend. “But the bottom line is, the business of the committee and of the Senate is affected by her absence.” On Tuesday, Feinstein’s office announced her return. Maybe Durbin’s gentle public cajoling worked, and maybe he’s got more of that killer instinct than he was credited for back in 2015?
Now the pressure will be on Democrats in the committee—starting with Durbin—to actually confront a Supreme Court that progressives see as out of control. Durbin, of course, also has the power to resist that pressure and not lift a finger.
Difficult decisions are going to come to a head for Durbin soon. Senate Republicans, with more district court vacancies coming up in their states, could ramp up their use of a blue-slip blockade. And with Feinstein returning to D.C., Durbin will have to decide how aggressive he chooses to be with subpoenas, and whether to try them on Supreme Court justices. Durbin is well liked, but not especially feared, because he tries to exhaust all avenues of cooperation before setting a bold new precedent. But he may soon be pressed to show whether he has the savage side that Democratic pressure groups are demanding.