Intensifying culture wars and presidential politics threaten deal-making at the Senate Judiciary Committee, as Chair Dick Durbin seeks to shepherd President Joe Biden’s nominees and advance legislation on contentious issues such as immigration and policing.
The Illinois Democrat’s resolve and political skills will be tested Thursday when the committee plans to vote on the first batch of Biden’s judicial picks. It’s only the start of what’s likely to be a contentious term, particularly if there is a Supreme Court vacancy.
Durbin said he’s fully prepared for opposition from the panel’s Republicans, particularly those positioning themselves for a possible White House bid in 2024: Sens. Ted Cruz (Texas), Josh Hawley (Mo.), and Tom Cotton (Ark.).
“As I look across the table, with the exception of two or three Republicans, I’m facing their most aggressive members,” Durbin said in an interview. “It’s a challenge, and I knew it going in.”
The first nominees receiving committee votes include Ketanji Brown Jackson for a spot on the influential U.S. Court of Appeals for the D.C. Circuit. Jackson would replace Merrick Garland, whom Biden tapped to be attorney general after Senate Republicans refused to act on his 2016 nomination to the Supreme Court by President Barack Obama.
Along with Jackson, the committee plans to consider Candace Jackson-Akiwumi for the U.S. Court of Appeals for the 7th Circuit and U.S. district court picks from New Jersey and Colorado.
A longtime member of Senate leadership, Durbin took the committee helm after members became disillusioned with what they viewed as the lackluster performance of Sen. Dianne Feinstein(D-Calif.) during last year’s confirmation hearings of Supreme Court Justice Amy Coney Barrett.
With Democrats now in the majority, the committee is critical to implementing parts of Biden’s legislative agenda as well as installing his Justice Department nominees and confirming judges to counter the growing conservative tilt of the federal courts under President Donald Trump.
But the committee has become far more polarized since the days when Biden served as its chairman in the late 1980s and 1990s, with its purview including red meat issues for ambitious lawmakers to rally their core supporters.
Along with Cruz, Hawley, and Cotton, in the previous Congress the committee also included presidential aspirants Kamala Harris (D-Calif.), Amy Klobuchar (D-Minn.), and Cory Booker (D-N.J.).
In previous times, the Senate Foreign Relations and Armed Services committees were top draws for ambitious politicians, experts said.
“Hillary Clinton’s choice of Armed Services clearly was to pick up national defense cred,” Ross Baker, a Rutgers University political scientist, said in an interview. “But with the rise of polarization, Judiciary is the committee in which the big ideological battles are fought. It becomes a place where you go to perform and develop a reputation as a fighter for a cause — and raise money.”
The committee is far different from the one where Biden struck bipartisan deals, said Norm Ornstein, an American Enterprise Institute political expert.
“The Republicans have basically stacked the deck on the Judiciary Committee with some of the most incendiary members they have,” Ornstein said in an interview. “The theme is going to be, ‘I’m younger, smarter, tougher, and more ruthless than Donald Trump.’ That means you’re going to see a lot of posturing.”
Ornstein said the committee could become even more polarized after Sen. Charles Grassley (R-Iowa) turns the ranking spot over to Sen. Lindsey Graham(R-S.C.) at year’s end because of term limits.
Grassley and other Republicans helped Democrats confirm Garland as attorney general. But they were unified in their opposition to both Vanita Gupta, Biden’s pick to be associate attorney general, and Kristen Clarke, his choice to head DOJ’s civil rights office, requiring Majority Leader Chuck Schumer (N.Y.) to force votes to discharge the nominees from committee.
In an interview, Cruz called Biden’s nominees “predictively unqualified, radical, and extreme, whether it is the radical twins nominated to the Dept. of Justice of Vanita Gupta and Kristen Clarke, both of whom have been leading proponents for abolishing the police, or whether it is HHS Secretary Xavier Becerra nominated to lead the Health and Human Services agency despite the fact that he has no health care experience.”
At her confirmation hearing, Clarke said she didn’t advocate broadly defunding police but supported reallocating some resources to mental health and other social services that could help police. Gupta said she doesn’t support defunding the police.
Grassley said in an interview that Durbin “is doing a good job” as chair. But Grassley’s joined Republicans in opposing what he called Biden’s “partisan” picks, including Clarke, saying they’re “highly politicized nominees.”
Durbin and Grassley said it’s still possible the two sides could strike a deal on a police overhaul and bipartisan talks continue on gun control options. Durbin and Grassley have introduced measures building on the First Step Act (Public Law. 115-391), the bipartisan criminal justice measure Trump signed into law.
Steven Smith, a Washington University political scientist, said Durbin fully anticipated the challenges when Democrats took control in a 50-50 Senate but can’t overcome the deep ideological divide that’s been building for years.
“What he can do is try to set the agenda and keep pushing the administration on nominations and get them sped up as much as he can,” Smith said in an interview.
There has already been moments of bipartisanship. Former longtime Justice Department official Lisa Monaco’s nomination as deputy attorney general was unanimously agreed to by voice vote in the committee before a 98-2 confirmation vote on the floor.
Still, in the current environment even noncontroversial measures, such as a resolution the committee considered during National Police Week, can get ensnared in partisan bickering. Durbin and Grassley agreed to drop a passage used previously acknowledging that all law enforcement officers serve “with valor and dignity,” and instead include language recognizing only those killed in the line of duty.
But that plan drew strong opposition from Cruz, who said it echoed Clarke. The impasse was resolved when Booker suggested keeping the traditional language but adding the single word “who” before “serve with valor and dignity.”
“I agree, damn it, with Ted Cruz,” Booker said.
“That’s going to be used in ads against you, Cory,” Cruz responded.
To contact the reporter on this story: Nancy Ognanovich in Washington at firstname.lastname@example.org