The Senate Judiciary Committee was in the spotlight today as Merrick Garland, President Biden's nominee for Attorney General, was advanced out of the committee. The next stop is a confirmation vote by the full Senate. In a recent interview with the New York Times, Senate Judiciary Chairman Dick Durbin opined on his new role. But as the Ethics and Public Policy Center's Ed Whelan points out, Durbin's interview distorts the reality that he inherited.
Dick Durbin’s Distortions https://t.co/H0ShRcpp4K— Ed Whelan (@EdWhelanEPPC) March 1, 2021
First, Whelan points out that Durbin's portrayal of Republican's declining to take up Merrick Garland's nomination to the U.S. Supreme Court by then-President Barack Obama is wholly inaccurate:
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.
Next, Whelan pushes back against Durbin's assertion that the Trump Administration's judicial nominees were unqualified:
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."
Furthermore, Whelan notes that Senator Durbin is unwilling to acknowledge that that the "blue slip" process for appellate nominations was restored to its traditional role during the Trump Administration:
[Durbin's] 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.”
Finally, Whelan points out Durbin's hypocrisy in calling for more gender diversity on the bench:
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.
While Republicans came to different conclusions today about whether to advance Garland's nomination, there was universal agreement that Garland failed to answer critical questions about how he will run the Justice Department after his likely confirmation by the whole Senate:
Senate Judiciary Republican Cornyn after voting for AG nominee Garland today:"I was impressed by his humility, and his humanity, & I intend to support his nomination.But I must express some concerns because I hope we're not headed toward another Obama-Holder Justice Dept Take 2." pic.twitter.com/6JJKdJSEIQ— Craig Caplan (@CraigCaplan) March 1, 2021
Merrick Garland failed to:— Senator Ted Cruz (@SenTedCruz) March 1, 2021
❌Commit to upholding the Rule of Law and protect the DOJ from being politicized.
❌Commit to protecting the 2nd Amendment and uphold immigration laws.
❌Say whether the assaults on the courthouse in Portland were terrorism.
That’s why I voted no. pic.twitter.com/M9BBJheek0
The push back from Judiciary Democrats against Republicans' criticism, led by Senator Durbin, is laughable in light of what Senate Democrats put nominees through during the Trump Adminsitration.