Bench Memos

Law & the Courts

Dick Durbin’s Distortions

In an interview with the New York Times, new Senate Judiciary Committee chairman Dick Durbin offers some thoughts on his new role. Alas, his thoughts are not particularly coherent.

1. Durbin contends that Republican opposition to Merrick Garland’s Supreme Court nomination in 2016 “was a contrived political strategy to keep him personally off the Supreme Court.” But it was in the immediate aftermath of Justice Scalia’s death on February 13, 2016, that Senate Republicans resolved to keep the vacancy open through the election. They adopted their strategy without regard to any particular candidate. It was more than a month later that President Obama nominated Garland.

As I have made clear repeatedly, I very much admire Merrick Garland, and I’m sorry for his sake that he ended up being the candidate that Obama offered up. But Obama picked Garland in order to try to defeat the Republican blockade. In other words, Obama would never have nominated Garland but for the Republican obstruction.

Durbin also ignores the inconvenient fact that the Left was lukewarm at best about the Garland nomination. There is good reason that, as this Washington Post article recounts, “No one mentioned Garland during the Democratic National Convention in July [2016], including Barack Obama.” Any such mention would have been unlikely to elicit a positive reaction.

As for the strategy being “contrived”: Kathryn Ruemmler, who served as President Obama’s White House counsel from 2011 to 2014 candidly acknowledged that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the Scalia vacancy. And, of course, Joe Biden himself proclaimed such a strategy way back in 1992.

2. Durbin contends that the Trump administration, in its judicial nominations, was “scraping the bottom of the barrel and bringing in unqualified people.” His evidence for that claim is that the American Bar Association rated ten Trump nominees “not qualified,” versus none in President Obama’s eight years.

I have no quarrel with the ABA’s adoption of a minimum standard for experience for judicial candidates (though I do wish it would apply its standard evenly). It’s the application of that standard that led to several candidates being rated “not qualified.” That was the case, for example, for Kathryn Kimball Mizelle, who, among her distinguished credentials, was a former law clerk to Justice Clarence Thomas. Far from contending that the Trump administration was “scraping the bottom of the barrel” in nominating her, the ABA said that she “has a very keen intellect, a strong work ethic and an impressive resume” and that “[h]er integrity and demeanor are not in question.” It made clear that its “not qualified” rating (which, by the way, was a majority rating, not, as Durbin contends, a unanimous rating) was based entirely on “the short time she has actually practiced law and her lack of meaningful trial experience.”

Further, the disparity between the “not qualified” ratings of Trump and Obama nominees owes much more to the fact that the Obama White House had the ABA do its ratings before nominations were announced. As the New York Times reported in November 2011 (just under three years into Obama’s first term), the ABA had already deemed 14 of Obama’s intended nominees to be “not qualified,” and the “number of Obama prospects deemed ‘not qualified’ already exceed[ed] the total number opposed by the group during the eight-year administrations of Presidents Bill Clinton and George W. Bush.”

More broadly, Trump’s nominees overall received excellent ABA ratings, notwithstanding the ABA’s sporadic liberal bias against some of them. As Jonathan Adler summed things up late in the Trump presidency, “Through the first two years of his Presidency, a higher percentage of judges nominated by President Trump received “Well Qualified” ratings from the American Bar Association than any recent President save for George W. Bush,” and “the pattern [over the past two years] is the same.” Indeed, even Ian Millhiser, a fierce opponent of Trump’s nominees, has acknowledged that “based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”

3. On blue slips, Durbin states:

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. [Brackets in original.]

Durbin became a senator 24 years ago, at the beginning of Bill Clinton’s second term. “And then there came a time …” seems to be his obscure way of acknowledging that his Democratic colleague Pat Leahy, as Senate Judiciary Committee chairman, gave much more power to home-state senators who objected to President George W. Bush’s appellate nominees. When Grassley demoted the blue slip for appellate nominations in late 2017, he left it as a tool to ensure that the White House had consulted with home-state senators. He explained that he was “restoring the traditional policy and practice of the vast majority of my predecessors over the past 100 years.”

4. Durbin’s professed concerns for gender diversity might be taken more seriously if he had not just been part of a power play that prevented Dianne Feinstein from becoming the first female chairman of the Senate Judiciary Committee.

Recommended

The Latest