Durbin pours cold water on Democratic hopes for SCOTUS hardball

The top Democrat on the Senate Judiciary Committee said that any future Supreme Court nominees should get a vote, regardless of which party controls Congress.WASHINGTON (CN) — With the midterm election on the horizon, Illinois Senator Dick Durbin on Wednesday discouraged Democrats from engaging in the same political gamesmanship over Supreme Court nominees as their Republican colleagues if the party wins the majority in November.The top Democrat on the Senate Judiciary Committee said there was no denying the power within the Senate’s control. But, unlike Republican Senator Mitch McConnell’s hardball tactics during the Obama administration, Durbin said that all judicial nominations should get a vote.“The only senator who has ever changed the tenure and composition of the Supreme Court is Senator McConnell, who decided for 10 months that eight justices was just fine and left that vacancy as the Obama presidency closed,” Durbin said during an event in D.C. “I think that was overstepping and contradicting some of the same positions he’d taken on previous justices.”In 2016, McConnell, who at the time was the Senate majority leader, refused to hold a vote on President Barack Obama’s nomination of former Attorney General Merrick Garland to fill the late Justice Antonin Scalia’s seat on the Supreme Court.McConnell blamed his opposition to Garland on the upcoming 2016 presidential election, but on the eve of the next election in 2020, the Kentucky Republican rushed the appointment of a successor for the late Justice Ruth Bader Ginsburg’s seat. Barrett became the third Supreme Court justice nominated by Trump and confirmed by the Senate during his first term.Over the last decade, Democrats have criticized McConnell’s approach to shoring up conservative judicial nominees. But Durbin, who is retiring at the end of the year, said that his party shouldn’t engage in retaliation if Democrats win the majority in the midterm election.And the Illinois Democrat threw cold water on changing the number of Supreme Court justices to even the score.“If we have a wave election in just a few weeks, and we have the necessary majority to move such a proposal through, we still face a presidential veto,” Durbin said. “I don’t think this is a realistic conversation in current political makeup with Washington.”In July, Rhode Island Senator Sheldon Whitehouse said he would reintroduce his Supreme Court Term Limits and Regular Appointments Act, a bill that, if made law, would introduce staggered 18-year term limits for new justices appointed to the bench. The proposed legislation would also allow the Senate to waive its historical “advice and consent” power over Supreme Court nominees.Whitehouse’s proposal would allow the next president to nominate two new Supreme Court justices in the first and third years after a presidential election. Under the law, only the nine most junior justices on the bench would rule on cases — and after a term of 18 years, a justice would be deemed retired.Durbin’s remarks came during a panel with Republican Representative Darrell Issa, a member of the House Judiciary Committee. Both Durbin and Issa lamented the increased politicization of the court, but they diverged on who was to blame.Durbin said that Trump’s rhetoric has led the public to view the court’s rulings through a political lens.“There is a steady batter of the president demanding loyalty and rewarding it when he thinks they’re ruling in the right direction, and castigating them if they don’t,” Durbin said. “I think [Trump] has set the stage for politicizing the court, and each of their decisions is looked at in that context.”Issa, however, said that Trump wasn’t alone in his sharp critiques.“I will not refute anything [Durbin] said about President Trump having strong opinions and voicing them about the court, but we have members of the House and Senate who do the same thing, and who outright accuse [the justices] of somehow being corrupt,” Issa said.Issa pushed back on term limits for the judiciary, stating that life tenure helped judges maintain their independence. However, he did say that more lower court judges should take senior status to allow the appointment of new judges.Neither Issa nor Durbin said their proposals were well accepted by the judiciary.“I will agree with Senator Durbin on one thing: the chief justice is not very pliable on those questions, and I have been disappointed that when you go in to talk about how we would do better, how they could do better self-rule so that we would not be trying to trample on the other branch, generally you get a pretty hard pushback from the chief justice,” Issa said. “He’s very proud of the independence of his court.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads