Senator Dick Durbin (D-IL) explained to an audience of University of Chicago Law School students—“the talent pool Karl Rove will not pull from”—what he believed was at stake with the Supreme Court nomination of Samuel Alito in a talk yesterday.
“Many rights Americans take for granted hang by a single thread,” said Durbin, who was celebrating his 61st birthday. “Whoever takes over this swing seat could change the course of direction for America,” he added, citing the pivotal role Sandra Day O’Connor has taken in discussing her potential successor.
The American Constitution Society of the Law School invited Durbin, a member of the Senate Judiciary Committee, to speak on the Alito nomination. According to Durbin, O’Connor held the deciding vote in 148 Supreme Court cases over the past decade. Anyone taking over for O’Connor, Durbin said, could single-handedly determine the legal stance on the death penalty, immigrants’ rights, environmental protection, church-state separation, foreign international law, and the right to privacy—which includes women’s reproductive rights.
Durbin added that new legal questions have emerged from the recent Supreme Court confirmation hearings, primarily concerning issues of executive power and legislative power. The last decade has presented a slate of Supreme Court rulings that struck down Congressional legislation, which, in Durbin’s view, inhibits Congress’s power to write such influential laws as the Voting Rights Act of 1965 and the Clean Air Act.
“If the next Supreme Court justice takes a narrow view of the Elastic Clause and the Due Process in the 14th Amendment, it could bar Congress from enacting necessary laws,” Durbin said. “It could jeopardize the abilities of Congress and could present a radical shift in executive law.”
Durbin was less critical of a judges restricting executive power, saying that the next Supreme Court justice needs the courage to stand up to a president who uses war to infringe on individual rights. Citing the Patriot Act as one such example, Durbin was part of a civil liberties union of senators that claimed the current act falls short of protecting individual civil liberties.
Durbin said he had deep consternation with comments Alito made in 1985 that there was no constitutional protection for a woman’s right to have an abortion.
“I look for a nominee with a threshold of acceptance of these basic constitutional rights,” Durbin said. Democratic senators would not need to resort to a filibuster if Alito is forthcoming, said Durbin, who did not completely rule out that possibility.
The senator added that Republican congressmen were trying to push Democrats to the wayside during the confirmation process. “I don’t think either [the 2000 or 2004 Presidential] election was a mandate,” Durbin said. “I feel America is still very divided and Americans are looking for moderate, centrist leaders.” Durbin said that if President Bush had a mandate from the elections, he would still have less authority than he did six months ago.
Law students and faculty then asked questions. Gerald Rosenberg, professor of political science at the University, in disagreeing with Durbin’s views on judicial influence over Congress, asked, “Can’t the Congress do a lot more if they’re concerned on a wrong-way court?”
Durbin responded by referring to the Terri Schiavo controversy as an example of Republican lawmakers overstepping their bounds in the courts and reiterated the importance of the judicial system’s integrity and power.
“Stripping the court of power, overt and indirect action by Congress against the court is perilous,” Durbin said. “This is a line the American people think shouldn’t be crossed.”
