Durbin, New Judiciary Chair, Warns Republicans on Blocking Judges

WASHINGTON — After nearly four decades in Congress, Senator Richard J. Durbin finally presided over a full committee hearing as chairman last week, gaveling the Judiciary Committee to order to consider the nomination of Judge Merrick B. Garland to be attorney general.

It was a crowning moment for Mr. Durbin, Democrat of Illinois. With his party gaining the Senate majority, he took the reins of a panel that handles the issues that have driven his congressional career: judicial nominations, federal courts, immigration, criminal justice and civil rights, to name a few. Mr. Durbin, who is also the No. 2 Senate Democrat, sat for an interview in his leadership suite in the Capitol to answer questions on those topics and more.

Offering a warning to Republicans on judges, Mr. Durbin said he would reserve the right to end their ability to block district court nominees through the arcane “blue slip” process — which allows senators to bless or blackball nominees from their home states — if he concluded that they were obstructing nominations without legitimate grounds.

That would represent the latest diminution in the power of minority senators in the judicial wars, and it would also ease the Biden administration’s path to confirming district court judges in states with Republican senators.

In the wide-ranging interview, Mr. Durbin said he was hunting daily for Republican supporters for an immigration overhaul and offered his ideas on expanding the courts and addressing domestic terrorism, the types of judicial nominees he would favor and the appearance of Mr. Garland before the panel that, under Republican control, had denied him even a hearing on his nomination to the Supreme Court in 2016.

It has been edited for length and clarity.

Was it fulfilling for you to finally see Merrick Garland before the Judiciary Committee?

It was a moment of simple justice. This poor man five years ago went through an ordeal no one should have faced. And it was a contrived political strategy to keep him personally off the Supreme Court. Unfortunately, for five years, whenever his name was mentioned, that was a first reference point. Now there is a new reference point.

Do you see the committee’s role as trying to rebalance the courts after four years when the Trump administration and Senate Republicans placed as many conservative judges as they could on the federal courts, particularly the appeals courts?

When you change administrations and change the majority of Congress, that is the natural outcome, the rebalancing of the previous administration. What makes this a different assignment is the focused, determined effort by the Republicans in the last four years to fill every vacancy as quickly as possible, and with, in many instances, nominees of dubious quality to lifetime positions.

I can’t tell you how many times I would say in the Judiciary Committee to the Republicans, “You mean in the entire state of Alabama you couldn’t find one conservative Republican with trial experience or sitting on a state court ready for the federal bench? You bring us a man who’s never been in the courtroom? Someone who has no experience whatsoever? That’s as good as it gets in conservative legal circles?” And I said it over and over. They sent us 10 nominees who had been judged unanimously unqualified by the American Bar Association. Ten! In comparison, in the eight years of Obama, none. None. So they were scraping the bottom of the barrel and bringing in unqualified people.

Having said that, [Senator Mitch] McConnell’s plan to fill every vacancy was a determined effort and was largely successful. We are going to do our best to fill every vacancy with a qualified person. I can’t tell you anything more than that, because it’s way too early in the game.

How do you intend to handle blue slips?

I can remember circuit court judges 20 years ago, when I came; they said basically it is a presidential pick and watch the parade go by and salute. And then there came a time when there was the equivalent of a blue slip on circuit court judges. But Senators [Charles E.] Grassley and [Lindsey] Graham [the previous Republican chairmen of the judiciary panel] put an end to that. So the blue slips were not applicable. They are applicable for district court judges.

So you will abide by that precedent?

Yes, but I will tell you this: I’m going to keep an open mind. If I think it’s reached a point where the blue slip on district court judges is really not a question of temperament or philosophy or academic background and experience, but really gets down to some base issues involving race and gender, I reserve the right to revisit that. I’m not going to be party to that. I am not going to let the blue slip perpetuate prejudice in America.

To that point, there’s a push by progressive groups, by the White House, to say we don’t need more corporate lawyers and prosecutors on the courts, we need civil rights lawyers, we need public defenders, different sorts of personnel. Do you agree with that?

I totally agree with that. … I want not only diversity by race and gender and ethnic background, but I’m looking for just what you put your finger on: people who have had the experience of sitting at the other table. There are always prosecutors ready to serve, and many of them are excellent judges. But I do believe we need the diversity of background, not just corporate attorneys and prosecutors, but people who have done yeoman’s duty in legal clinics and as public defenders. They have a place, an important place, in the system.

Should Justice Stephen G. Breyer retire this year?

Should he? You are asking me? I am going to leave this entirely up to him, obviously. Give me a break! I’ve been in this chair for four days.

Should Congress add seats to the lower courts?

There’s a process underway, bipartisan process, to make that evaluation. And I’m open to it; where we can demonstrate the need, I believe we should respond to it. Historically, if you’ve been through the committee for two decades, as I’ve been, you know that as soon as the Democrats come into the majority, Republicans start arguing that we’ve got way too many federal judges. Not enough workload. I want to make sure that we can establish the case based on the sound evidence of the caseload facing the courts and be able to point to some objective criteria.

The Biden administration has a commission on court reform with a report due soon. If it recommended adding Supreme Court seats or term limits, what would you do?

Most people are surprised to learn that the Constitution does not establish nine Supreme Court justices, and we’ve had different numbers over the years, although I think it’s been 150 years. I want to keep an open mind on that as well. I know F.D.R.’s [Franklin Delano Roosevelt’s] experience in court packing. And I realize that in a 50-50 Senate, you have to have your eyes wide open to what is even in the realm of possibility.

On immigration, what is your preferred approach for advancing legislation? Piecemeal or comprehensive?

I think you know how I feel about the issue. That’s my mother’s naturalization certificate over there. The son of an immigrant and proud of it. I’ve really been, I guess, to pat myself on the back, outspoken on the issue for a long time. As author of the Dream Act, I’m still waiting 20 years later for passage into law. And I view this as an opportunity not just on the Dream Act but on the issue of immigration.

Now, let’s step back and look at the political reality. It’s a 50-50 Senate, which means that any measure that I support, and all the Democrats support, still needs 10 Republicans — 10 — to weather the storm on the floor, and to beat back unfriendly amendments. That’s what I’m setting out to find. I think I have three that are prepared to work with me, and I’m trying to figure out what to put together in an immigration bill that brings 10 Republicans on board that is acceptable to the 50 Democrats. I’m working on it literally every day.

Should your committee pursue the status of race relations and white supremacy?

That issue is front and center. I’ve been working on it for years. We’ve passed the point where there were out-of-shape, face-painting individuals cavorting in the woods with automatic weapons calling themselves militias. We have now reached a much different stage of things. And we’re now dealing with a genuine threat of domestic terrorism. We saw it personally, up front, personally, here in the Capitol on Jan. 6.

We have to get serious about this. We have to take care. This is a delicate issue when it comes to those who are calling for new laws. This is a difficult, challenging area, preserving free speech and the values of our democratic society, and dealing with homegrown terrorists who are bound and determined through violence to change this government.

It has been edited for length and clarity.

Was it fulfilling for you to finally see Merrick Garland before the Judiciary Committee?

It was a moment of simple justice. This poor man five years ago went through an ordeal no one should have faced. And it was a contrived political strategy to keep him personally off the Supreme Court. Unfortunately, for five years, whenever his name was mentioned, that was a first reference point. Now there is a new reference point.

Do you see the committee’s role as trying to rebalance the courts after four years when the Trump administration and Senate Republicans placed as many conservative judges as they could on the federal courts, particularly the appeals courts?

Yes, but I will tell you this: I’m going to keep an open mind. If I think it’s reached a point where the blue slip on district court judges is really not a question of temperament or philosophy or academic background and experience, but really gets down to some base issues involving race and gender, I reserve the right to revisit that. I’m not going to be party to that. I am not going to let the blue slip perpetuate prejudice in America.

To that point, there’s a push by progressive groups, by the White House, to say we don’t need more corporate lawyers and prosecutors on the courts, we need civil rights lawyers, we need public defenders, different sorts of personnel. Do you agree with that?

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