Feinstein departure from top post sets stage for Judiciary fight

Sen. Dianne Feinstein’s (D-Calif.) decision this week to step down as the top Democrat on the Judiciary Committee is sparking a fight over the future of the panel, with many Democrats and outside groups pushing for a more aggressive approach toward Republicans.

Feinstein’s departure came after weeks of pressure from Democratic colleagues and others who want a new strategy to counter Senate Majority Leader Mitch McConnell (R-Ky.), particularly after President Trump successfully appointed his third Supreme Court justice.

One person familiar with the efforts to oust Feinstein as the ranking member of the Judiciary panel said Senate Minority Leader Charles Schumer (D-N.Y.) had multiple conversations with Feinstein and people around her about her role on the committee after groups on the left criticized how she handled Justice Amy Coney Barrett’s confirmation hearings.

“It was in process for several weeks in the sense that there were lots of touches happening,” said the source.

Two progressive groups — NARAL Pro-Choice America and Demand Justice — called for her to step down as the senior Democrat on the Judiciary Committee immediately after Barrett’s confirmation hearing ended.

NARAL Pro-Choice America said Feinstein failed to make clear “how unprecedented, shameful and wrong” the confirmation process was after Republicans raced to seat Barrett on the high court before the Nov. 3 election, a sharp contrast from their refusal to hold a hearing for Judge Merrick Garland in 2016.

Some Democratic senators said privately before the hearing that they wanted someone other than Feinstein to lead the Democratic response on the committee.

Other groups on the left were thinking about joining the call for Feinstein to step down but held off after Schumer’s office put out word that the Democratic leader was working on the situation, according to sources familiar with the haggling over Feinstein’s future.

Schumer on Oct. 20 told reporters he had “a long and serious talk with Sen. Feinstein” after she caused an uproar by hugging Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) at the end of Barrett’s hearing, thanking him for “one of the best set of hearings that I’ve participated in.”

Schumer also spoke with Feinstein after that press conference.

Feinstein put an end to the drama Monday by announcing she would not seek to serve as the chairwoman or the ranking member of the Judiciary Committee in 2021, opening the door for a more junior member to head the committee. 

People familiar with the behind-the-scenes talks said her decision didn’t come out of the blue, but it wasn’t final either until she announced it.

The 87-year-old California lawmaker, who won reelection in 2018, said she wants to devote her energy to responding to the damage caused by drought and wildfire in her state.

Democratic aides, however, said she was under pressure to step down. 

One aide said Feinstein’s grip on the panel’s leadership took a hit from “the double whammy of the embrace of Lindsey Graham combined with her performance during the whole hearing.”

With Feinstein stepping aside, Democrats are now jockeying to take the Judiciary Committee in a new direction.

Senate Democratic Whip Dick Durbin (D-Ill.) announced Monday that he plans to seek the post vacated by Feinstein. 

Durbin, the No. 2 Democrat in the Senate, noted in a statement that he has served on the panel for 22 years and is its most senior member who doesn’t currently serve atop another committee.

But he is already running into opposition from colleagues and outside groups.

“There’s a lot of concern about anyone in the top two positions in leadership chairing a committee,” said a Democratic senator. “I know there’s a lot of concern in the caucus about that.”

The senator said Durbin “would have to decide” whether he wanted to continue as Senate Democratic whip, a prestigious position that gives him access to a large office on the third floor of the Capitol and a security detail, or become the top Democrat on the Judiciary Committee.

Durbin is also the top-ranking Democrat on the Appropriations Subcommittee on Defense, which has jurisdiction over the Pentagon’s $700 billion budget.

There is no rule in the Senate Democratic Conference barring Durbin from serving as both whip and top-ranking Democrat on the Judiciary Committee, though it’s something the caucus may vote on before the start of the 117th Congress. 

Durbin’s allies note that other Democrats have served as whip and atop a committee.

The late Sen. Alan Cranston (D-Calif.) served simultaneously as Senate majority whip and chairman of the Senate Veterans’ Affairs Committee in the late 1980s; the late Sen. Wendell Ford (D-Ky.) served as Democratic whip and the top Democrat on the Senate Rules Committee in the 1990s; and former Sen. Harry Reid (D-Nev.) briefly served as the top Democrat on the Senate Environment and Public Works Committee when he was also Democratic whip in 2001.

Sen. Sheldon Whitehouse (D-R.I.), who ranks right behind Durbin on the Judiciary Committee, is also said to be interested in the top Democratic post.

On Monday, he praised Feinstein for leading Judiciary Democrats “with dignity and honor” and said he looks “forward to continuing our work together,” but did not comment on any plans to climb the ranks on the committee.

The next day, Whitehouse indicated he expects there to be a caucus vote on who should lead Democrats on the Judiciary Committee.

“In the wake of Ranking Member Feinstein’s announcement, I look forward to the question of succession on the Senate Judiciary Committee being decided by the caucus. I will abide by the caucus’s decision,” he said in a statement.

Whether Democrats are in the majority or minority next year depends on two runoff Senate races in Georgia scheduled for Jan. 5. Democrats need to defeat both Sen. David Perdue (R) and Sen. Kelly Loeffler (R) to flip control of the upper chamber.

Some outside groups are already signaling support for Whitehouse, the former attorney general of Rhode Island, who has made it a priority to highlight the role that huge dark-money contributions have had in influencing Republican nominees to the judiciary. 

Adam Green, co-founder of the Progressive Change Campaign Committee, on Tuesday praised Whitehouse as “strategic and savvy” while noting that Durbin already has substantial responsibilities as the No. 2 member of the Senate Democratic leadership.

“Sheldon Whitehouse is one of the most strategic and savvy fighters in the Democratic Caucus. Dick Durbin has a big job as Senate Whip, and we assume he would be thrilled for someone as good as Senator Whitehouse to play a leading role in Judiciary,” Green said. 

Some activists see Durbin as more in the mold of old-school senators who feel partial to the collegial traditions of the Senate, whereas they view Whitehouse as more willing to play hardball with McConnell and the conservative Federalist Society.

Durbin also has a record of working with Republicans. One of his biggest accomplishments in recent years was as lead Democratic negotiator on the First Step Act, a criminal justice reform bill that Trump signed into law in December 2018.

He was also a member of the bipartisan Gang of Eight — along with Schumer — that helped steer comprehensive immigration reform through the Senate in 2008.

So far, Schumer is staying neutral on the contest to succeed Feinstein, say sources familiar with internal discussions.

Durbin has support from some outside progressive groups because of his record on immigration and civil rights.

Robert Creamer, a political consultant and organizer who is married to Rep. Jan Schakowsky (D-Ill.), wrote a piece for Daily Kos on Tuesday that highlighted “Durbin’s close relationship with key progressive groups.”

Creamer noted that Durbin introduced the first DREAM Act two decades years ago to provide protections for immigrants who came to the country illegally at a young age.

Durbin was an original sponsor of this year’s Justice in Policing Act to address police violence; a lead sponsor of last year’s Voting Rights Advancement Act to combat voter suppression; sponsor of the SECURE Firearm Storage Act; and a supporter of expanded background checks and an assault weapons ban.

But Durbin is also under scrutiny from critics on the left over his role in cutting a deal with the Trump administration and Senate Republicans to confirm a package of judges to four district court seats in Illinois. 

NARAL Pro-Choice America in July called Judges Stephen McGlynn and David Dugan, who were confirmed to the U.S. District Court for the Southern District of Illinois, “hostile to reproductive freedom and pose a threat to Roe. V. Wade.”

“We are disappointed in Sen. Durbin for voting to advance these nominees and appalled that the anti-choice Republican majority on the committee continues to stack the courts with Trump’s judges, even in the midst of the pandemic,” the group said. 

Durbin, however, defended the deal in September for getting Judge Franklin Valderrama, a Democratic pick, on the Circuit Court of Cook County, praising him as “an outstanding addition to the federal bench.” 

“I recognize and respect the opposition that was expressed to two of the Republican picks in this package, Judges Dugan and McGlynn. These nominees have made statements and expressed views with which I disagree, particularly on matters involving reproductive rights. But as part of our bipartisan state process, I supported all four nominees in the package,” he said.

Updated at 12:04 p.m.