Whirling Durbin
Which Democratic senator is most likely to damage himself politically in the Roberts fight?
BY MANUEL MIRANDA
Monday, August 22, 2005 12:01 a.m. EDT
opinionjournal.com
One of the little imperfections of our American political system is that the qualifications of an excellent lawyer like John Roberts are judged, and often subjected to vituperative questioning, by politicians who are manifestly unfit for the job. Two of the Democrats on the Senate Judiciary Committee, Herb Kohl of Wisconsin and Dianne Feinstein of California, are not even lawyers. You can tell by the questions they ask, how they ask them, and, in Ms. Feinstein's case, her look of incredulity after a nominee gives a straightforward answer any law student would give but that Feinstein deems "out of the mainstream."
Ted Kennedy barely made it through law school before buying his Senate seat, and the inquiring Chuck Schumer never practiced law a day in his life. By contrast, eight GOP members are experienced lawyers, including a military judge and three former prosecutors, one of whom has also served as a state supreme court justice. (The Republican side of the Judiciary dais includes two nonlawyers--farmer Chuck Grassley of Iowa and physician Tom Coburn of Oklahoma.)
So it is odd that the senator who is, in my estimation, the most talented lawyer among his Democratic Judiciary colleagues is the one most likely to do himself harm during the Roberts hearings and debates: Dick Durbin.
Mr. Durbin's reputation is mixed. While sitting behind the dais of the Judiciary Committee three years ago, another Republican counsel asked several of us which of the Judiciary senators, on either side, would we want as our lawyer if our lives depended on it? We all agreed: Dick Durbin. Not even the slick John Edwards of North Carolina wooed us. Mr. Edwards, we agreed, was not as "ruthless" as Mr. Durbin.
Months later I asked a senior Republican senator what he thought of Mr. Durbin. "He is the most insipid man in the Senate," the Republican replied, without any hesitation.
As the second highest ranking Democrat in the Senate, Dick Durbin is in the spotlight as never before, and the country is now seeing that he is, indeed, both ruthless and insipid. In June, after wilting public scrutiny that included calls for his resignation, Mr. Durbin was forced to his knees and a near-tearful apology on the floor of the Senate after he compared American servicemen to Nazis, Soviets and the Khmer Rouge.
This came only days after the Washington Post revealed that Mr. Durbin, one of House Majority Leader Tom DeLay's harshest critics in a travel-related ethics controversy, was one of the most frequent congressional beneficiaries of international junkets. Mr. Durbin's communications director, Joe Shoemaker, admitted that Mr. Durbin had failed to report a trip to Asia he said was paid by a nonprofit group. Then it turned out that the junket's deep pockets, Results, identifies itself as a political lobbying organization with ties to MoveOn.org's radical financier, George Soros.
Mr. Durbin has already found himself embroiled in controversy over Judge Roberts. In late July law professor Jonathan Turley wrote in the Los Angeles Times that in the nominee's courtesy meeting with Mr. Durbin, the senator asked Judge Roberts "what he would do if the law required a ruling that [the Catholic Church] considers immoral." According to Mr. Turley, his sources--one of whom turned out to be Mr. Durbin himself--said that Judge Roberts "answered after a long pause that he would probably have to recuse himself."
The reaction from those, like me, who have long accused Democrats of imposing a constitutionally prohibited religious test was immediate, restrained only by disbelief that Mr. Durbin would do something so flagrant yet again. In 2003 Mr. Durbin joined other Democrats in mocking judicial nominee Leon Holmes of Arkansas, a Catholic, for his personal religious views on sex roles and marriage. He blocked Mr. Holmes from getting a Senate vote for over a year. Then Mr. Durbin joined Democrats in blocking judicial nominee William Pryor, another devout Catholic, for Pryor's "deeply held beliefs."
When voices of all faiths, including the Union of Orthodox Jewish Congregations, joined to complain and ads ran under the old banner "Catholics Need Not Apply," Mr. Durbin argued that he could hardly be accused of antireligious bigotry being a Catholic himself. This brought a near ex cathedra rebuke from Denver's Catholic archbishop, the Most Rev. Charles Chaput, in words not heard from any Catholic bishop before or after:
At a minimum, Catholic members of Congress like Senator Durbin should actually read and pray over the Catechism of the Catholic Church . . . before they explain the Catholic faith to anyone. They might even try doing something about their "personal opposition" to abortion by supporting competent pro-life judicial appointments. Otherwise, they simply prove what many people already believe--that a new kind of religious discrimination is very welcome at the Capitol, even among elected officials who claim to be Catholic.
Some things change, and some things don't. The bias against "papism" is alive and well in America. It just has a different address.
With outrage like that, Mr. Durbin might have thought twice about raising John Roberts's faith in any way. And a quick denial came from Mr. Durbin's press secretary, Joe Shoemaker. Mr. Turley responded that he has a tape recording of Mr. Shoemaker to prove the accuracy of his reporting.
What is not clear is whether Mr. Durbin actually asked Judge Roberts about how his Catholic faith would affect his ability to judge or, as Stephen Spruiell speculated on National Review Online, if Mr. Durbin gave Mr. Turley misinformation intended to harm Judge Roberts with conservative supporters. There is a third possibility: that Mr. Durbin used Mr. Turley to launch a public debate that Mr. Durbin thinks is worth having and that liberal journalists and Catholic politicians like Mario Cuomo have taken up with gusto.
In any case, when hearings and debate on John Roberts begin next month, Dick Durbin will likely make more blunders. One reason is that senators who have newly risen to national prominence often find that their staff, who were fine when the spotlight was not on, are not quite ready for the rigors of national attention. For that matter, the same is sometimes true of senators themselves.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays. (Editor's note: This column originally stated that Sen. Coburn is the only Republican nonlawyer on the Judiciary committee. It has been revised to correct a factual error pointed out by a reader.)
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