Analysis

Durbin Likely To Become Top Dem On Judiciary Committee

Law360 (November 24, 2020, 7:28 PM EST) -- Illinois Sen. Dick Durbin is the leading contender to succeed California Sen. Dianne Feinstein as the top Democrat on the Senate Judiciary Committee, where he would bring a liberal track record and focus on immigration along with a history of crafting bipartisan compromises.

Durbin is not guaranteed to get the spot, but former Senate staffers said his seniority made it highly likely. He could chair the powerful committee that vets all federal judicial nominees and writes legislation covering the courts, immigration, competition, intellectual property and criminal justice — but only if Democrats secure the majority by winning both of Georgia's Senate seats in a pair of January runoff elections.

Feinstein announced late Monday she would step back to focus on the wildfires and droughts that have afflicted California, which scientists expect will intensify with climate change. She will retain a seat on Judiciary and three other committees but will not have a leadership post. The 87-year-old had drawn criticism from progressives who said she did not forcefully challenge President Donald Trump's nominees and policies.

Within two hours, Durbin announced his interest in succeeding Feinstein.

"I intend to seek the top Democratic position on the Judiciary Committee," he said in a statement. "We have to roll up our sleeves and get to work on undoing the damage of the last four years and protecting fundamental civil and human rights."

Although each party votes on its committee members and leaders, seniority is a nearly ironclad rule for Democrats. Durbin, 76, said his 22 years on the panel put him next in line after Feinstein and Sen. Patrick Leahy, D-Vt., a former Judiciary chairman who would not be eligible if he keeps his spot as the top Democrat on the Appropriations Committee.

Durbin has established a liberal voting record — the 10th most liberal in the Senate last year, according to a GovTrack analysis — but also hammered out bipartisan compromises, such as the 2013 "Gang of Eight" comprehensive immigration deal that easily passed the Senate but died in the GOP-led House. For the last four years, he led Democrats on an immigration subcommittee and sought to protect "Dreamers," immigrants living in the U.S. illegally who were brought over as children.

He helped shape the First Step Act, the bipartisan 2018 criminal justice reform measure, in collaboration with Sen. Chuck Grassley, R-Iowa, who is expected to once again lead Republicans on the committee for the next two years. Current Chairman Lindsey Graham, R-S.C., has said he will step aside to let Grassley resume leadership after a brief stint chairing the Finance Committee, whose gavel he must relinquish under GOP term limits.

Durbin has also criticized Trump's judicial nominees, blasting many as inexperienced and overly partisan. However, the former trial lawyer simultaneously negotiated mutually agreeable packages of Illinois district court picks, drawing some criticism this fall from progressives for supporting two nominees who had previously expressed personal opposition to abortion.

Durbin's bid for the leadership role requires approval from a majority of the Democratic caucus.

Whether he ends up running the Judiciary Committee will depend on Georgia voters, who will cast ballots in runoffs for the state's two Senate seats on Jan. 5. The outcomes will determine which party controls the Senate, and a victory for Democrats would likely elevate Durbin to the panel's chairmanship.

Some Democrats might grouse about him holding two powerful posts; he has been the chamber's second-ranking Democrat since 2005, when he was first elected party whip. Senate Republicans don't let their whip simultaneously lead a major committee, but Durbin's office said it has been common for Senate Democrats.

Some progressive advocates might prefer Sen. Sheldon Whitehouse, D-R.I., who has charged conservatives with stacking the courts with ideologues beholden to big business and using "dark money" to sway the U.S. Supreme Court; Republicans respond that they only seek judges who don't pursue their own policy preferences.

"I look forward to the question of succession on the Senate Judiciary Committee being decided by the caucus. I will abide by the caucus' decision," Whitehouse said in a statement Tuesday that did not say whether he was seeking the leadership role.

Regardless, Durbin's longer tenure on the committee likely gives him the upper hand. Senators have historically been zealous defenders of assigning leadership posts based on seniority, which helps avoid intraparty fights and also benefits long-serving members who accrue power.

"My expectation would be that the Democrats stick to the seniority rule as they usually have," said former Democratic Senate staffer Daniel L. Goldberg, who is now legal director for the liberal Alliance for Justice. He had praise for Durbin.

"He has been a champion his entire career for equal justice, whether fighting for 'Dreamers' or against gun violence in Chicago," Goldberg told Law360. "He's been vigorous in his opposition to Trump's horrific judges, including most recently [Justice] Amy Coney Barrett. He asked some of the most probing and essential questions regarding her record."

A former GOP Judiciary Committee staffer said the leadership matters, especially for judicial nominees.

"It's a huge difference," said Mike Davis, a former Grassley aide who started the Article III Project. "The chairman determines who gets a hearing, who gets a vote and who doesn't."

He added that Durbin and Grassley have a solid relationship after more than two decades serving together, with cooperation extending beyond the First Step Act to areas such as agriculture and health care.

"They got along very well," Davis told Law360. "These are the old bulls of the Senate, the senators who remember the bygone days where senators can disagree without being disagreeable and reach agreement."

However, Democrats hoping to control the Senate face a tall order in winning the Georgia runoffs. Durbin's leadership would have much less impact if Republicans keep a narrow majority, University of Richmond law professor Carl Tobias told Law360.

"He's been a forceful advocate and I think a pretty persuasive one. He certainly knows the history and the people, and he seems to get along reasonably well with the Republicans," said Tobias, who studies judicial nominations. However, "if he's the ranking member — you do what you can, but you can't do a lot."

While many Democrats lauded Feinstein's past achievements — especially her work on gun control — her loudest praise in recent weeks has come from Republicans.

"She's a wonderful person and a progressive senator," Graham told reporters last month. "She dared hug me and look what's happening to her," referring to the hug and praise for him at the conclusion of Justice Barrett's confirmation hearings.

Grassley, who like Feinstein is 87, tweeted last month that liberal "Democrats calling for Senator Feinstein to step down from Judiciary ranking member should think twice [about] their sexist & ageist motivations against an outstanding legislator & icon in her own right." Feinstein would have been the Judiciary Committee's first female chairman.

In contrast, progressive advocates celebrated Feinstein's announcement Monday.

Brian Fallon, the executive director of Demand Justice, called for a Democratic leader "who will not wishfully cling to a bygone era of civility and decorum that Republicans abandoned long ago ... and who will pursue bold action to restore balance to our courts." The group has called for adding four seats to the Supreme Court, a prospect opponents deride as "court packing."

Another progressive group said Feinstein's move was not enough. The Sunrise Movement, which describes itself as a youth-led movement for climate action, called for her to resign in favor of Californians who would demand bolder changes.

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Beta
Ask a question!