Joe Biden’s most progressive promises are about to be squeezed through a Senate panel where the new president and his Democratic allies have little room to maneuver.
The Judiciary Committee will play a pivotal role over the next two years in determining whether Democrats can make good on an agenda that helped them take full control of Washington. The panel’s to-do list is long, encompassing everything from immigration to voting rights to criminal justice reform to gun violence to expanding LGBTQ rights — and its mission is complicated by a roster of senators on both sides of the aisle with bigger national ambitions.
Senate Democrats are acutely aware that given their narrowest of majorities, they’re short on time to get things done and in need of some GOP support to steer past the still-intact filibuster. That task is especially challenging on the Judiciary panel, whose chair, Dick Durbin (D-Ill.), acknowledged in an interview that the first year of a president’s first term is “when you get the most done.”
Durbin, who is also the No. 2 Senate Democrat, named the topic he’s led years of painstaking talks on as his first priority: "I’m looking for the first opportunity I can find for a timely presentation of an issue near and dear to me — immigration.” He added a note of candor about the partisan energy working against him, saying that “the fact that we probably have the A-team for Trump Republicans sitting across from us… it’s hard.”
The Judiciary Committee has hosted some of Washington’s most bruising political battles in recent years, peaking with the confirmation fight over Supreme Court Justice Brett Kavanaugh. It’s unlikely to get more harmonious this year, with at least four GOP members considered potential 2024 presidential candidates and several younger Democrats with higher aspirations. That means achieving bipartisanship on Biden’s top priorities could prove challenging at best and impossible at worst.
“The committee has changed, like the Senate has changed,” said Sen. Richard Blumenthal (D-Conn.). “It’s become more partisan… and there should be no surprises that it’s followed the trend line of the Senate.”
Durbin said he’s working on immigration "almost every day" and reaching out to any Republican senators who will listen to him, including on the narrower topic of farmworkers. He’s continuing talks with Sen. Lindsey Graham (R-S.C.), a panel member and longtime Durbin partner on the issue. But Graham also epitomizes the struggle ahead for Durbin as the Democrat tries to work with a GOP that’s heading further to the right, especially after years of former President Donald Trump’s messaging on border security.
Graham said in an interview Wednesday that Durbin has always been an “honest broker” on immigration but that a surge in border crossings is “overshadowing any legislative breakthroughs.”
“I don’t see anything getting through any committee until you turn around the tide,” the close Trump ally said. “Legalizing people in this environment, where there’s total chaos, would be hard to do.”
While immigration reform may prove elusive, senators from both parties suggested that a second criminal justice overhaul could be more likely. Durbin said the issue may be among the “early options” for the committee if he retains support from its top Republican, Iowa Sen. Chuck Grassley, who worked with Democrats to pass the so-called First Step Act in 2018.
Grassley is focused on the implementation of the First Step Act, but said he is working with Durbin on smaller scale reforms to the criminal justice system, including legislation to reform compassionate release policies for elderly prisoners and prevent judges from extending sentences to individuals who have already been acquitted by a jury.
When asked which parts of Biden’s agenda could actually get through Judiciary, Sen. John Cornyn (R-Texas) noted that “we’ve got a record on criminal justice reform, so I think that’s still a very fruitful area.” But he paused and stopped there: “That’s a short list, isn’t it?”
Durbin isn’t laying out a specific order for when the committee might take up specific issues. Instead, he’s directing his subpanel chairs to develop bipartisan legislation with their Republican counterparts, telling them he doesn’t “need to be the bride at every wedding." He has warned that to get floor time from Senate Majority Leader Chuck Schumer, any bill will need Republican backing.
Among the other areas of potential bipartisan movement are anti-trust legislation or the gun policy changes known as red flag laws, which allow police and family members to request that a court temporarily restrict access to firearms of individuals who may pose an imminent threat to themselves or others. While Democrats have reintroduced background checks legislation and the House passed its version Thursday, even gun-control advocate Blumenthal said he was unsure that proposal would receive the needed GOP buy-in.
The committee also is set to hold hearings in the coming weeks on domestic terrorism and legislation to prevent LGBTQ discrimination while shouldering the considerable burden of moving Biden’s picks for the Justice Department as well as the federal judiciary. As a growing number of federal judges take senior status under Biden, Durbin said he has already spoken with one potential nominee at the White House’s request.
Currently there are 69 federal judicial vacancies, including five on appellate courts and 60 on district courts. Biden has yet to officially announce any nominees to the bench, but with Judge Merrick Garland now confirmed as attorney general and Judge David Tatel retiring, the president will have the opportunity to fill two vacancies on the powerful D.C. Circuit Court of Appeals.
Durbin isn’t quite adopting Senate Minority Leader Mitch McConnell’s pledge to “leave no vacancy behind" in his march to stock the bench with young, conservative judges. While he said the committee will move forward “aggressively,” he added that “we are not going to reach the depths [McConnell] did.”
“He ended up sending people to us who were clearly unqualified,” Durbin said. “They were just going to put a warm body stamped approved by the Federalist Society in every vacancy in every court house in America. And we’re not going to do that. We’re going to have people that meet the test of competence."
But after four years of watching Senate Republicans confirm judges at a near record pace, progressive groups are eager for Democrats to push through their own judicial nominees. Liberals are encouraging Durbin to scrap the long-standing “blue slip” process, which gives a senator veto power over their home state’s district court nominee. Democrats so far are keeping the tradition.
While judges will be a significant focus, Democrats vow they’ll use the committee as more than just a bench-filling machine. They’ll get backup in that effort from Biden, who knows the committee well after chairing it for eight years.
“There is a certain impatience about showing that we can legislate, and I think it’s important for the Judiciary Committee to balance its important role in confirming judges and judicial nominees with making legislative progress on some of these key priority areas,” said Sen. Chris Coons (D-Del.), a close Biden ally. “There is a real window for bipartisanship but we’re going to have to show movement.”