Durbin to become top Democrat on Judiciary panel, keep No. 2 spot

Sen. Dick Durbin (Ill.) is poised to become the top Democrat on the Senate Judiciary Committee next year and keep his spot as No. 2 Senate Democrat. 

Senate Democrats voted on Wednesday to approve a rules change proposal from Sen. Tim Kaine (D-Va.) that will allow Durbin to hold one top committee position in addition to being the Senate Democratic whip, a Senate aide and Democratic source confirmed. 

Under Kaine’s proposal, Durbin will have to give up his position as top Democrat on the Senate Appropriations Defense Subcommittee, something he has said he was willing to do in order to comply with the new rules.

Democrats had to pick between Kaine’s proposal and an effort by Sen. Sheldon Whitehouse (D-R.I.) to require Durbin to pick between being whip or being the top Democrat on the Judiciary Committee. 

Whitehouse is next in line behind Durbin on the panel and had hoped to succeed Sen. Dianne Feinstein (D-Calif.), who is stepping down from the position amid fierce criticism from outside groups over her handling of Justice Amy Coney Barrett’s Supreme Court nomination. 

Whether Durbin will be chairman of the Judiciary Committee or ranking member will be determined next month because the two Georgia runoff elections will decide which party controls the Senate majority. Democrats also still need to formally approve who their top members on committees will be for the next Congress. 

The power struggle marked a rare point of division among a Senate Democratic caucus that has prided itself on unity during the past four years. The battle spilled into public view after it tapped into long-simmering frustrations among younger and newer members about the perceived bottleneck to acquiring top committee and subcommittee positions. 

The caucus also approved a rules change from Sen. Chris Murphy (D-Conn.) altering the way top positions in the caucus on subcommittees are divided up, but rejected a broader proposal for term limits for key positions and a separate effort to try to delay the discussion on the rules changes for two years. 

“It’s no secret that I’m a believer that we should share the wealth a little bit more when it comes to leadership positions in the caucus,” Murphy said. 

Wednesday’s vote follows weeks of debate, including hours-long phone calls, among Senate Democrats in the wake of Feinstein’s decision to step down from Democrats’ top spot on the Judiciary Committee.

Durbin automatically threw his hat into the ring, while Whitehouse was more tight-lipped. Some progressive groups threw their support behind Whitehouse, who they believed would be more aggressive in judicial fights, while a coalition of progressive, civil rights and criminal justice groups aligned with Durbin. 

No caucus rule previously prevented Durbin from being whip, taking over the top Democratic spot on the Judiciary Committee, and being the top Democrat on the Appropriations Defense Subcommittee, but his effort to succeed Feinstein sparked a larger battle about a perceived bottleneck in climbing the hierarchy ladder.

There was a discussion about if Wednesday was too soon to call the vote, given that the change won’t go into practical effect until January, but the discussion had already generated days of headlines about the Democratic divisions. Holding the vote now also gives Democrats more certainty about their position in the caucus next year. If Whitehouse’s effort had won it could have dramatically reshaped the leadership team. 

Senate Minority Leader Charles Schumer (D-N.Y.) publicly kept his distance from caucus infighting, including declining to discuss the issue in public. 

“Look, I think the bottom line is every two years we have a robust discussion in our caucus about the caucus rules and what should be changed and what shouldn’t be changed, and we’re going to have another good discussion in the next few weeks,” Schumer told reporters last week. 

He declined to discuss the issue during a press conference this week. 

Sen. Ben Cardin (D-Md.) organized and moderated the effort, reviving his role as overseer for any caucus rules change discussions. 

“I don’t believe that my role is to advise. If they ask my advice I give it to them, so that we can make a caucus decision,” Cardin said about his role. “I’ve been involved in a lot of discussions.”

The fight hit a hours-long hiccup on Wednesday after an initial round of voting failed to determine Durbin’s fate because both Kaine’s and Whitehouse’s proposals passed, even though they contradicted each other. 

“I can tell you that what was supposed to be an A or B vote was yes-no, yes-no vote,” Whitehouse said after the first round of voting. “There’s a flaw in the ballot.”

Senators acknowledged there was some confusion, along with jokes about runoffs, election tampering and pledges that they would get it right the second time. Democrats voted by secret-ballot in a room off the Senate floor where a ballot box was located. Senators, at one point, were spotted waiting in line to vote roughly a half hour before the initial round was set to close at noon. 

“We’re close. We’re getting there. Nobody could have imagined that we could have wrapped up the rules conversation in a week. …We’re going to get there,” Murphy said amid the confusion between the two rounds of voting. 

Asked if there was a problem with the ballot, Murphy acknowledged that there was “a little bit of a misunderstanding” but that “it’s all going to be fixed.”

Kaine added, “I think most people should have understood they were alternatives. I don’t know.”