TOP
Dick Durbin
Chapters
The FRONTLINE Interviews
Dick Durbin
U.S. Senator (D-IL)
Dick Durbin, a Democrat, is the senior United States senator from Illinois. He serves on the Senate Judiciary Committee.
This interview was conducted by FRONTLINE’s Gabrielle Schonder on November 5, 2020. It has been edited for clarity and length.
This interview appears in:
Text Interview:
Highlight text to share it
The Death of Ruth Bader Ginsburg
I wonder if I can take you back into a moment not too long ago, which is the evening that Justice Ruth Bader Ginsburg passes.Can you help me understand the grief that is felt in Washington that night?We have some imagery of folks gathering around the Supreme Court, holding a vigil.
I was surprised.I ended up getting a phone call from one of my political friends out of nowhere who just said: "Did you hear?Ruth Bader Ginsburg just passed away."That really came as a surprise to me.I knew that she was struggling and had her share of illnesses and was fighting valiantly.And I was hoping she would be able to hold on for a new president; I'm sure she was, too.But it really was a stunning moment when we finally realized she was gone.I think across the country people started reflecting on her career and what she'd done with her life.It was an amazing story of determination.And she probably did as much, or more, as any modern woman in America to fight for the rights of women—and for all people, for that matter.
What was the feeling in Washington that evening?
There was a sinking feeling.We knew that even though it was late in the year from a political perspective, that Senator [Mitch] McConnell was going to move heaven and earth to fill that vacancy as quickly as possible.He was going to reverse himself on his position he took just four years ago when Antonin Scalia passed away.We anticipated that to happen.I had no doubt in my mind he was going to do it, and that's exactly what he did.
I'm envisioning you sort of bracing for a response from the Republicans pretty immediately.
Well, so many of them had kind of taken this blood oath four years before: A president this close to an election—oh, of course not, we won't fill that vacancy when Barack Obama's president; we're going to wait for the new president, whoever that might be.And then four years later, to reverse themselves on some technicality, it was a moment when many of my Republican colleagues were staring at their shoes when they made these announcements.They knew how bad they looked, but they were going to march loyally behind Senator McConnell.
McConnell's Push to Fill the Ginsburg Seat
Why do you think Senator McConnell—how does he care about the appearance of this?
I think he cares very little about the appearance of it.He has a goal in mind, and, giving him credit, he has achieved it by and large, and that is to fill the federal judiciary with nominees who meet a certain political ideological test, who will receive lifetime appointments on the bench.The belief is, by the Republicans, that they can take these Article III judges and achieve politically what they've been able to unachieve with any Republican president or Republican-dominated Congress.
So Senator McConnell makes his announcement 45 days before the election.Considering what he had done with Judge Garland four years earlier, how did you view the decision that he made to do this?
I thought it was really low.I remember Merrick Garland coming to my office.He, of course, was President Obama's selection to succeed Antonin Scalia.President Obama sent that name to the Hill, and Senator McConnell announced there would be no hearings for Merrick Garland.In fact, he discouraged any Republican senator from even meeting with him, giving him the courtesy of a meeting.I thought that was a low moment in the history of the Senate, first that McConnell would invent this new standard on approval of judges and deny that Barack Obama, in the last year of his presidency, was anything more than a lame-duck president, and then to treat this man, well-respected jurist in Washington, in this fashion really was beneath the tradition and decorum of the Senate.
And this moment?
Well, this moment, we knew from start to finish that it was going to be done before the election.We didn't know initially why, but we soon learned.The election, Nov. 3; a week later, Nov. 10, there was to be an oral argument before the Supreme Court on the future of the Affordable Care Act, Texas v. California.And the administration, through the attorney general, had weighed in to abolish the act.They needed to make sure that they had an additional justice on the court to achieve it, and that meant that that justice had to be sworn in before the Nov. 10 oral argument to participate in the final decision.
Just curious.Has Senator McConnell, during this time period we're talking about, ever called you, reached out to you to inform you of the decision he was making?
… Not a word.And I don't believe that he communicated with Senator [Chuck] Schumer, other than through the press.He was bound and determined to get this done.It was not a matter of conversation or dialogue as an alternative.It was take it or leave it.
Let me ask you now, once the hearings begin, the nominee seems to have no interest in winning over Democrats.This is a process that we haven't quite seen before.But I'm curious to know how the hearing process had changed, if we think back to previous nominees.
Well, several things were pretty obvious.First, it was done in a hurry-up fashion.There was not even the routine investigation of opinions and writings and speeches.Even while the witness was on the stand or the nominee was in the hearing room, things were coming out, speeches that hadn't been disclosed.That's happened before, but that's after a longer period of time of investigation.We just knew that this was done in a hurry, and it showed.
Secondly, the nominee in this case, Judge [Amy Coney] Barrett, really took what she called the "Ginsburg Rule," or whatever she characterized it, to an extreme.We reached the point where you really had to ask yourself, what is our point in being here if we can't ask basic questions?It hasn't been that long ago—Justice John Roberts is an example—when he would give basic answers about precedents and cases in the past.It has now reached the point where this nominee just walked away from every question, refusing to answer anything and saying that she was bound by her judicial oath not to even tell us what her opinions were.I thought it reached the most extreme position when a Republican senator, John Kennedy, asked her about climate change.Climate change.And she basically—she looked as if she was hearing that term for the first time, "climate change": "Well, I don't have any opinion or view on that."He said, "You don't have any view on climate change?""No, and I probably shouldn't give an opinion because it may come up in a later case."
I'm thinking, here is this 48-year-old gifted attorney, former law school professor, who has been a circuit court judge and is raising seven children and a family, and she doesn't have an opinion on climate change?It reached the point where I thought, she's not going to answer anything.
The rubber stamping seemed to be the new way these hearings were sort of going to proceed, that this was just an expedited and perfunctory process; that advice and consent had gone where?
Well, it really did reflect that.And we tried on our side, on the Democratic side, to really speak to the opinions she had written, the cases she had decided, and really get to the fundamental question here, which I think really was the start of my inquiry into what was really behind her nomination, and that is her assertion that she's an originalist, a textualist, that somehow she found in the literal words of the Constitution and its amendments all she needed to know about the demands of the 21st century and the evolution of justice in America.I frankly don't put much credibility in that.I think it is an excuse to diminish the role of government in critical areas where that's the only way that justice will be achieved.
The Amy Coney Barrett Nomination and Hearings
I wonder if we can go back to talking about the pace of when the hearings sort of get kicked off.I'm going back a little bit in time here.There were 16 days between the nomination and the hearing beginning.Let me actually ask you, when you were watching the White House nomination ceremony—were you watching it?What were you seeing?
No, I didn't.I saw it afterwards.I saw the superspreader event played and replayed.But, you know, I think the curious thing was, we were not supposed to be in session in October.It was an election year, and traditionally we're not in town for that.Well, we were not only in session, but we were doing very important historic business, in a nomination for someone to the Supreme Court.
So it was a peculiar, extraordinary time, when other senators were not even in town.But we were doing what we were supposed to do, be there for the Senate Judiciary Committee.But it was clear it was a high priority, and they were going to brush everything else aside and get this done.
It's interesting: Senator McConnell is so instrumental in every part of this decision, from the nominee onwards, right?But he's actually not at the nomination ceremony at the White House.Did that surprise you?
I don't know.I can't explain his relationship with the Trump administration, the White House.But I will tell you, he announced back home in Kentucky during the course of that, that he stayed away from the White House because he was concerned about the health and safety of people who visited.That was an extraordinary thing, made the news, as it should, that the Republican leader of the Senate stayed away from that building for fear of infection with COVID-19.
There are 16 days between the nomination and the hearing beginning, and I'm just curious about how that compares to the average ways these hearings usually go.I think the number I've heard is that it's typically like a 56-day process.
There have been shorter periods of time for the consideration of a nominee, but usually under extraordinary circumstances—either there was a consensus candidate that was going to move very quickly, for example.In this circumstance, the fact that it was occurring while the presidential election was underway, unprecedented.It's never happened in the history of the Senate.For all of their explanations and excuses, it's never been done.And particularly in light of what happened four years ago, it really seemed to be hypocritical.
Certainly once she's sworn in, 60 million people had already cast their vote for president.This nomination had happened closer to an election than any in our modern politics.I'm wondering what the significance of the moment is.
Well, we believe—I believe that it had to do with the elimination of the Affordable Care Act once and for all.The senators and congressmen on Capitol Hill had voted some 70 different times over the last 10 years to eliminate it.I remember the historic moment when John McCain walked into the well of the Senate in the early-morning hours and cast his no vote.I was standing just a few feet away from him; I'll always remember it.But it was the last-ditch effort of the Republican-dominated Congress under reconciliation to eliminate the Affordable Care Act.This was it; they were going to get it done.And he defied them and said, "We don't even have a substitute for this; I'm not voting with you."And that's when the attention shifted to achieving this through the courts.
McConnell’s Focus on the Courts
I feel like I've been doing stories on the broken Senate for a decade, and I sort of wonder if you can kind of help me understand Mitch McConnell's focus, Mitch McConnell's determination to also push this nominee through.
Mitch McConnell has had a single purpose for at least six years, and that is to dominate the federal judiciary.He has changed the rules in the Senate, in terms of considering Supreme Court nominees: The simple majority is enough.He has withheld opportunities for Democrats when they were in control under President Obama to fill vacancies on the D.C. Circuit and other places.He's tried to create the largest number of vacancies possible in the hopes that a Republican president would be elected and fill them.And that's exactly what happened with Donald Trump.If you compare the first four years of a presidency—Bush, Obama and Trump—what was achieved in filling vacancies, you have to say Mitch McConnell was responsible for an additional 100 appointments to the federal courts with lifetime tenure, 100 men and women.And of that number, I might add, 10 were found unanimously unqualified by the American Bar Association.You say, "Oh, well, that must have happened under Obama."It didn't.Obama had none that were found unanimously unqualified.Those 10 unqualified people were all approved by McConnell's Republican Senate and sent for lifetime tenures on the court.
Let me ask you a question, because Senator McConnell has said this himself.He has said that the most important thing he can do as a senator is to change the shape of the court.That's a pretty extraordinary thing for a member of the legislature to say.What does it tell us?
The Constitution uses the words "advice and consent," not "stuff the ballot box." …What McConnell has set out to do is to make sure that the people who come to the court have gone through the basic tests: Were they once members of the Federalist Society?Did they have the approval of Leonard Leo?Did they have the support of the groups that run these extensive ad campaigns while the nominations are underway?And are they prepared to sit on the court and rule for the rest of their natural lives along certain ideological lines?It's very transparent.It's the only reason you could explain what he set out to do.
The Court and a Biden Administration
Let me go into a little bit of a hypothetical, not knowing, of course, what today's news will bring us.But anticipating that we may have a Biden presidency headed our way, I wonder if you can help us sort of understand the significance of Biden taking the lead in blocking Bork and now facing a court, potentially, that is in some ways, sort of solidly in the heirs of Judge Bork.What are the challenges that he faces?
Well, he faces challenges at two levels, of course, with this court now 6-3, conservative to progressive or liberal, and how they will rule on cases involving the Biden administration remains to be seen, but it's not a happy circumstance.But let me add, at the same time, he is also a president who will want to fill judicial vacancies and has to work with Senator McConnell to achieve that goal.That is a tough, tough assignment.
I watched as McConnell turned down Obama's efforts to fill vacancies in his last two years, just waiting for the day, biding his time, so that he can be in a position to fill the largest number when the next Republican president was elected.
What's the reality of what McConnell will do, when it comes to appointees under a Democratic president?
I fear the worst.I think he will not give Biden or the Democrats their opportunity to fill these vacancies.The interesting thing is the American people don't want a Supreme Court that's all Republican or all Democratic.I really believe they're looking for some balance and impartiality, some moderation on the court, and that's not what Senator McConnell's had in mind over the last several years.
I'm also curious if you could help me almost list out the ways this court, the issues this court will wade into.You mentioned health care already.But it will sort of define itself shortly, in a matter of significant issues.
Well, I'm not sure what direction this court will be headed in, you know.Giving writs of cert is probably the greatest power of the court, just to pick the cases that they want to rule on.But they certainly have an increasingly dominant majority, when it comes to very conservative positions.There's been signals—if you follow the court, you know this happens—signals sent by two of the justices on Obergefell, in terms of discrimination based on sexual orientation, kind of inviting the case to come in and "let us reconsider that."And that's troubling in itself.
But I don't know.
Particularly in the area of choice and abortion, reproductive rights, women's health care: I'm very concerned about where that's headed, particularly with the new nominee.
And the obstacle that the court may be for Biden's agenda?
Well, we did everything we could under the Trump administration to use the courts to stop the most extreme things, injunctions and TROs [temporary restraining orders] and other mechanisms to stop the implementation, until there was a court decision.I'm sure that there will be efforts on the right to do the same thing to President Biden as much as possible.So the court could end up being the final arbiter on some critical decisions that try to restore America to its position before the arrival of President Trump.
Yeah.I wonder what you think about how much power this court will wield in a divided government, as it looks more like the Senate will hold.
I had some hope at one point, based on his decisions, that Justice Roberts was an institutionalist who did not want his court to be branded politically.And some of his decisions, which angered President Trump, I thought were efforts in that regard.And then comes Justice Barrett.And now the numbers have changed.Justice Roberts by himself will be unable to achieve that with four progressives, but only three left.So he'll need a helping hand in getting that done.It remains to be seen what Justice Barrett will do.
Do you think Mitch McConnell understands the power of this court right now, in a moment of incredible division in the country, but of course in a moment in which it appears the government will be so divided?
Mitch McConnell did not move heaven and earth and force his members to take these blood oaths and then recant them without knowing the power of this court.And particularly when it comes to Democratic presidents, Mitch McConnell made his position very clear in the first days of the Obama administration that he was determined that he would be a one-term president.So he doesn't sound like a man who wants to cooperate, and I'm sure he's hoping that the court will help him in his efforts to derail any efforts by the Biden administration.
A Politicized Court
I'm curious to ask you a bit about the threat that Senator [Sheldon] Whitehouse makes in the hearings, about what is to come.
And I wonder if you can help us understand if the wars over the courts are maybe just beginning.What are the longer-term consequences, especially from the Democratic side, for this period we're in?
Well, this is a serious moment.The world will not remember the integrity of the Senate Judiciary Committee, but they certainly will think about the integrity of the Supreme Court.
And I think this appointment at this moment in time, particularly in the midst of the possibility of election contests and the future of the Affordable Care Act, you know, could call into question the reputation of the court for a generation or more.Senator Whitehouse, my friend and colleague, he's pointed out the 5-4 decisions, 80 or 90 of them, made by this court, which tend to favor the expected Republican side of each argument.And that to me is not in the best interest of the court.When the court loses any opportunity to surprise the American people with its moderation or its fresh look at something, and becomes a predictable, political operation, it doesn't help that branch of government.
Yeah.I also think about this threat of court packing and the impact that may have on our discussion about the court.
Well, of course, that depended on a Democratic Congress, a Democratic Senate, and remains to be seen whether that's going to be reality or not.But it is a time to look at the court in the long view, even if it's just a study that doesn't result in any finite change.I'm concerned about where it's going after these years of McConnell and his efforts to fill the court with ideologues.
Do you think that's finally happened on the left, that this issue has now drawn people out?
To some extent.But by and large, what I've found in the past, the American people are two steps removed from understanding the role of courts in their daily lives.There are exceptions, of course.People in the gay community certainly remember the day, and others—African Americans remember the day and harken back to Brown v. Board of Education.But by and large, the average American just doesn't translate that court with its nine justices into a direct impact on their lives.If they abolish the Affordable Care Act, that may change overnight.
That's interesting, though, because when I think of reproductive choice or I think of climate change or health care or all of these issues that this court is going to be weighing into, these are fundamental issues.
They are.But I just think—at our hearing, we really tried to connect this nomination with the future of the Affordable Care Act in the middle of a pandemic.I don't think there was a single Democrat on the committee who didn't raise that, and raise it effectively.And I think it had some impact, but it—the real impact, sadly, will be if they go to the extreme and abolish the Affordable Care Act.Then you're going to find reactions across the country when there's real-life misfortune.
… We're obviously after the election.It's pretty clear this is a bitterly divided country.Is the Supreme Court now part of that politics?People warned of justices being politicians in robes.Is this Supreme Court at that point where it's just a political player in our democracy?
I think the Supreme Court is viewed by those who follow it to be more political than in any modern time.It really has reached the point where people are keeping score of who was put in by a Democratic president and who came in under a Republican, and that's unfortunate.It's not that long ago when men and women were chosen for the court because of their extraordinary credentials and the fact that they were basically moderate in their outlook.There are exceptions, of course, on the right and on the left.But I think, by and large, you'll find that the center stripe was the widest stripe on the court.That's no longer the case.It's just a much more political institution in the eyes of those who follow it.
And what would be the danger in having the court be a political institution when you've got a divided government, when you've got the gridlock and Congress potentially unable to resolve issues on its own?
Well, you always thought in the past that the court would be that opportunity to finally quiet the emotions and to look at something in terms of the law, in terms of the facts, and to say to the American people, "Here's the course we ought to follow, based on the precedent of previous decisions."It would be a calming influence on America.I'm not sure that the court could entertain that reputation today, unfortunately.
I think, as I mentioned before, that Chief Justice Roberts felt that in some of his recent decisions, when he joined with the so-called Democrats on the court to look for a more moderate position.I'm not sure what will happen with Justice Barrett on board.
Latest Interviews
Latest Interviews
Policies
Teacher Center
Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation
Koo and Patricia Yuen
FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Additional funding is provided by the Abrams Foundation; Park Foundation; the John D. and Catherine T. MacArthur Foundation; and the FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
