Senate Democrats dodge on SCOTUS strategy in post-midterm majority scenario

Democrats weren’t willing to say whether they would engage in partisan gamesmanship to block a future Trump Supreme Court pick should they retake the Senate this year, following a warning from the party’s outgoing No. 2.WASHINGTON (CN) — With the potential of a split government looking likelier than ever ahead of the midterm elections, questions have swirled about how a Democratic Congress might approach a future Supreme Court vacancy during President Donald Trump’s term.But Senate Democrats on Thursday had little to say about their strategy for handling another Trump justice — refusing to count their chickens before November and sidestepping recent comments from an outgoing party chief who discouraged a partisan blockade.Senate Minority Whip Dick Durbin, the retiring top Democrat on the Senate Judiciary Committee, argued during an event Wednesday that his colleagues should not read out of the same playbook Obama-era Republicans used should they win the majority. He contended that any judicial nominee handed down by the Trump administration — including one for the nation’s highest court — should get a vote under a Democratic Congress.Despite those candid remarks from the outgoing Durbin, Democrats who will remain on the Judiciary Committee next year weren’t willing to say whether they agreed with the call for regular order.“Let’s win in November first,” California Senator Alex Padilla told Courthouse News. Connecticut Senator Richard Blumenthal similarly refused to engage with Durbin’s comments, saying he would not comment on “hypotheticals” about the Democrats’ strategy under a future majority.And Rhode Island Senator Sheldon Whitehouse, who is the clear favorite to replace Durbin as the seniormost Democrat on the Judiciary Committee and would likely be chairman under a Democratic majority, also kicked the can down the road.“I’m not going to think about that until I’m faced with that problem,” he told Courthouse News.Under the Obama administration, then-Senate Majority Leader Mitch McConnell halted consideration of Supreme Court nominee Merrick Garland, pointing to the upcoming 2016 presidential election. But during the Trump administration just years later the top Republican fast-tracked Justice Amy Coney Barrett’s appointment to succeed the late Ruth Bader Ginsburg — putting her on the bench before the 2020 election.Durbin on Wednesday said McConnell’s partisan scheme was “overstepping” and contradicted his own political history. But he cautioned Democrats against taking a similar approach to future Trump Supreme Court nominees.The outgoing top Democrat also expressed doubt about efforts by some of his colleagues in Congress to change the composition of the high court, saying he didn’t think legislation to increase the number of justices was a “realistic conversation” given the political landscape in Washington.Though Durbin has remained critical of the Supreme Court and perceptions of Trump’s influence on the bench, his potential successor Whitehouse has taken an even more aggressive tack. Whitehouse reintroduced legislation in July aimed at establishing 18-year term limits for high court justices. He said at the time that he was moving ahead with the bill even though it was unlikely to become law, reasoning that it was important to keep the public conversation about ethics at the Supreme Court alive.Whitehouse in the past also championed legislation that would force the justices to adopt an enforceable code of ethical conduct, with complaints adjudicated by a panel of lower court judges. Under the Biden administration, that measure managed to pass the Senate Judiciary Committee but failed to net the necessary support to clear the full chamber.Durbin, who announced last year that he would not seek another term as Illinois senator, was chairman of the Judiciary Committee under the Biden administration. He oversaw oversight efforts on the Supreme Court stemming from revelations that some of the bench’s more conservative justices failed to disclose high-value gifts lavished on them by right-leaning political activists — including some who would later have business before the court.Democrats, meanwhile, are eyeing potential majorities in both the House and Senate following the midterm elections. Polls show voters have soured on Republicans and Trump mostly due to the spiking cost of living.But the path to winning the Senate, where a Supreme Court nomination fight would play out, is less clear.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