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Thursday, Feb. 3, 2005 01:28 pm

Bush fighter

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Cover photograph by Ginny Lee

When Texas Supreme Court Justice Priscilla Owen, perhaps President George W. Bush’s most corporately compromised judicial nominee, appeared early in 2003 before the Senate Judiciary Committee, the most devastating line of questioning she faced did not come from one of the big-name inquisitors on a committee that includes a Kennedy, a Biden, and a Leahy. Rather, Owen was taken down by a mild-mannered Midwesterner with a flair for discovering and exploiting the weaknesses of the Bush administration and its judicial nominees.

Could Owen identify any opinion she had ever written, U.S. Sen. Dick Durbin, D-Ill., inquired, “that was politically unpopular with the established power structure in Texas?” As Owen first asked Durbin to explain what he meant by “established power structure,” and then stumbled through a nonanswer that ended with her grumbling about political correctness, you could hear the wheels falling off the bandwagon the administration had tried to create to win approval for their nominee. Even conservative Democratic senators recognized that they were dealing with a conservative judicial activist whose elevation to the U.S. Court of Appeals for the Fifth Circuit would pose a genuine threat to justice in the Deep South and joined a filibuster that ultimately led to the withdrawal of Owen’s nomination.

How did Durbin know that Owen could not answer even the most basic questions about her subservience to political and economic special interests? Because, to a greater extent than any other senator, he has taken seriously the fight against Bush’s most troubling judicial picks: carefully targeting the worst of them, mastering their records and developing lines of questioning meant to illustrate to other Democrats the necessity of rejecting them. “He doesn’t just try to score points,” says Nan Aron, president of the Alliance for Justice, the coalition of progressive groups that has been at the forefront of challenges to the Bush administration’s strategy for reshaping the nation’s courts. “He zeroes in on the issues that matter most and then he just starts demanding answers.”

For the most part, Durbin’s filleting of Bush’s judicial nominees has been an obscure pleasure enjoyed mainly by Washington liberal activists who monitor the progress of judicial nominations. But that’s about to change. When the 109th Congress begins to address the Bush agenda in coming days, Durbin — an unassuming 60-year-old everyman with a self-deprecating sense of humor, a willingness to share the spotlight, and a penchant for skipping Washington parties to return to his hometown of Springfield — is quickly emerging as the most aggressive and progressive member of the Senate Democratic leadership. Durbin has challenged the Bush administration on everything from judicial nominations to flu vaccine to torture at Abu Ghraib. He has hit the ground running with votes against attorney-general nominee Alberto Gonzales and secretary-of-state nominee Condoleezza Rice. And there is every indication that he intends to show congressional Democrats how to be something they have not been since Bush assumed the presidency: an effective opposition.

Those who have followed Durbin’s 22-year career as a member of the House and Senate argue with confidence that his election as Senate Democratic whip, the second-highest-ranking position in the caucus, was one of the few bright spots in the dark days following the 2004 election debacle. “If you believe in progressive politics, you have to be excited that Durbin’s where he is,” says David Axelrod, a veteran Democratic consultant who has run a number of Senate races and last year managed John Edwards’ presidential campaign.

The Nov. 2 defeat of Minority Leader Tom Daschle opened the way for a long-needed reshuffling of the Democratic Party’s leadership in the upper chamber. Yet the move of Daschle’s lieutenant, Nevadan Harry Reid, into the minority leader position inspired little excitement; Reid is scrappier than Daschle, but his centrist tendencies, particularly on hot-button issues such as reproductive rights and gun control, have always marked him more as a manager than as a marauder. The rise of Durbin holds out the prospect of the something extra that Democrats have been missing: an edgy willingness to battle the powers that be, not just in the Senate but in the court of public opinion. “It’s not an accident that Durbin is the whip. I don’t think he’s been elevated to be a mute,” adds Axelrod, who has known the Illinois senator since the late 1970s. “Harry Reid is a more reticent player. Because Reid is who he is, it was incumbent on the party to have an advocate in leadership, and that’s Dick.”

Durbin is not, however, a maverick. Though he has one of the most liberal voting records in the Senate, he sees himself as very much in the mainstream of his party. But he recognizes something that too many party leaders in both houses have had a hard time wrapping their heads around since the 1994 election handed power to the Republicans: The mainstream of his party is not currently the mainstream of Congress. Democrats must therefore stop thinking of themselves as the natural party of government and start operating as an opposition force — picking the right fights, remaining united in their dissents, and establishing a record on the most critical issues of the day that is distinct from that of the White House and the House and Senate majorities. “We have to have our own agenda,” says Durbin, who has already begun meeting with Reid and House Minority Leader Nancy Pelosi to shape a clearer Democratic line. Yes, Democrats suffered a serious setback in the 2004 elections — they now hold just 44 seats in the Senate. (Independent Jim Jeffords caucuses with the group to create a 55-45 partisan split.) But Durbin does not see his party’s diminished position as an excuse for a compromise of ideals; in fact, he says, “we Democrats can’t take this sitting down. We have to stand up, look at our own agenda, our own language and figure out how we build this back into a majority party.”

Durbin is ready for that fight. The new whip is a man of government, so much so that he once served as the parliamentarian for Democrats in the Illinois Legislature. Since arriving in Washington in 1983 as a young congressman representing the district that once sent Abraham Lincoln to the House, Durbin has mastered the protocols of Capitol Hill. But he also knows how to trump the Republicans in the battle of public opinion. Last fall, before the extent of the nationwide flu vaccine shortage was fully revealed to the American people, Senate Majority Leader Bill Frist sent a letter to senators urging them to get inoculated. Durbin responded with a show of populist fury that would have well served Democratic presidential nominee John Kerry, who never quite figured out how to capitalize on a public-health crisis that had occurred on his opponent’s watch. “It simply isn’t fair for senators to cut to the front of the line when seniors around the country have been forced to wait for hours to get a flu shot,” raged Durbin, who turned down the proffered shot and then dispatched a letter to Health and Human Services Secretary Tommy Thompson demanding to know “whether or not officials in our government knew that problems were coming and did little or nothing to prevent them.”

Durbin learned how to play to win in one of the nation’s most savage political settings. Born and raised in southern Illinois by parents who were active trade unionists, he has spent a lifetime in the rough-and-tumble world of Illinois Democratic politics, where generations of idealists have been ground up by the Daley family’s Chicago machine. But Durbin attached himself early on to two idealists who proved tougher than the machine: liberal icon Paul Douglas and the man who would eventually occupy Douglas’s seat in the Senate, Paul Simon, the bow-tied battler for civil rights and civil liberties. Durbin describes the late Simon as “my closest friend in political life.”

“If you want to know where Dick Durbin is coming from, you have to understand his connections to Paul Douglas and Paul Simon, which I think taught him that you don’t need to put your finger in the wind every time an issue comes up,” says Dawn Clark Netsch, a former Illinois legislator and gubernatorial candidate. “Dick learned that you can have good political instincts and still have principles. In fact, he learned that you have to have good political instincts if you’re going to stand on principle and win.”

More than anyone else, Simon paved the way for Durbin in politics, ultimately tapping his former aide to inherit Simon’s Senate seat in 1996. Simon knew Durbin was ready. During his previous seven terms in the U.S. House, Durbin had led fights to scrap funding for the Strategic Defense Initiative, to defend funding for the Women, Infants, and Children nutrition program, and to ban smoking on planes (Durbin, who was 14 when his father died of lung cancer, has fought what Congressional Quarterly describes as a “relentless campaign against the tobacco industry”). Durbin was not always a perfect progressive. Though he now gets 100 percent ratings from Planned Parenthood and NARAL Pro-Choice America, he started in politics as a foe of abortion rights. And his first House race, in 1982, benefited from a dramatic infusion of pro-Israel money that helped him depose former Republican Rep. Paul Findley, a thoughtful critic of Israeli policies who wanted the United States to develop better relations with the Palestine Liberation Organization.

There was a time when liberals in Illinois and beyond saw Durbin as someone who played the game of politics a little too well. But, says Arab American Institute president Jim Zogby, Durbin’s record in Congress has won over doubters. “For my part, I’ve always looked at Durbin as a progressive Democrat, but he has really emerged in that regard in recent years,” says Zogby. “In particular, his commitment to civil liberties has been extraordinary.”

Though Durbin cast an unwise vote for the USA Patriot Act in the fall of 2001, he soon emerged as one of the Senate’s most outspoken critics of that legislation’s excesses. Zogby says that Durbin stands out as one of Congress’s most ardent battlers against racial and ethnic profiling, a stance for which he has earned high praise from the American Civil Liberties Union. And as the Abu Ghraib scandal blew up, it was Durbin who introduced an amendment to the 2005 defense-authorization bill reaffirming the U.S. ban on torture. More recently, during the Judiciary Committee confirmation hearings on the nomination of Alberto Gonzales to serve as attorney general, Durbin grilled the White House counsel regarding the administration’s tolerance of torture before voting against him.

In recent years, Durbin has become the go-to man for liberal activists who cannot get a hearing from their own senators. When Bush nominated Wisconsin Supreme Court Justice Diane Sykes, a rigid conservative with a troubling record on criminal-justice issues, to serve on the U.S. Court of Appeals for the 7th Circuit, Wisconsin’s Democratic senators deferred to home-state pressures and backed away from a fight. But Durbin took it on, charging that Sykes had engaged in “major-league evasion” when she was asked by Judiciary Committee members about abortion-rights issues, and he convinced more than two dozen Democratic senators to join him in opposing a nominee who many believe is on the fast track to become the next conservative woman on the U.S. Supreme Court. “Most senators, particularly senators who are angling for a place in the leadership, would not take on a fight like that,” says the Alliance for Justice’s Aron. “But Durbin recognized that there was a need to challenge her at this point, if only to establish a record for the future.”

Although Durbin is very much a member of the inner circle of Senate progressives — after the 2002 elections he formed a loose-knit progressive caucus that included Massachusetts’s Ted Kennedy, Wisconsin’s Russ Feingold, New Jersey’s Jon Corzine, and several other senators who wanted Democrats to get more aggressive in battling Bush — he is no fan of lonely protest votes. He is determined to hold the Democratic caucus together in order to get the 40 votes necessary to stall Bush nominees and policies. Even as he moves to leadership, Durbin plans to maintain a high profile on the Judiciary Committee — and to serve as a bridge between committee Democrats and the full caucus. “I think the members of our caucus understand the gravity of this moment,” he says. “The new Supreme Court justice could tip the scales on many close decisions. I hope President Bush really does the right thing for America and finds someone who is more moderate and not extreme. But if he should choose someone who is extreme in his positions, then I think that the Senate Democratic caucus will stand together and oppose him.”

Durbin can also be expected to lead on issues related to the war in Iraq. Both Daschle and Reid voted in favor of authorizing President Bush to use force against Iraq in the fall of 2002. Durbin, on the other hand, was one of the Senate’s loudest critics of the measure. “I felt then as a member of the Senate Intelligence Committee that the president had not made his case for that war and certainly had not demonstrated that we were prepared to go in effectively and win quickly,” he says. “Without a broad coalition, without the support of other nations, we ran the risk of what we’re currently facing, which is an intractable conflict with no end in sight.” Does that mean that Durbin is ready to begin talking about the need for a timeline for the withdrawal of U.S. troops? “I don’t know that we’ve reached that moment, but we may be near,” he says. Then, showing those political instincts that have served him so well, Durbin frames his questioning of the war in terms of concern for Army National Guard and Reserve units that he says have been “pushed to the breaking point.” He says, “The president is facing a strain on the military that cannot be sustained.”

Durbin’s vote against the Iraq war came during his first Senate re-election campaign, and he took hits from his Republican challenger for casting it, but he was easily re-elected. “Durbin crossed the Rubicon with that 2002 vote against the war,” says David Axelrod, the political consultant. “He made it clear that, even as he was moving up in the Senate, he wasn’t going to start looking over his shoulder and worrying about what votes were safe.” For his part, Durbin says, “I think it was the most important vote that I ever cast in 22 years of service on Capitol Hill, and I think it was one of the best votes.” Then, sounding like a very different leader than Senate Democrats have had for a long time, he adds, “I am not going to shrink away from this at all. In fact, I think the American people are ready for Democrats to start speaking up.”

Durbin’s determination to speak out, and his proven ability to do so in ways that work, both on Capitol Hill and beyond, do not merely mark him as a man to watch in this Congress. They mark him as one of the best hopes for a party that has struggled for the better part of a decade to identify itself as something more than just the lite brand of Republicanism. The man who was on the vice-presidential short lists of Al Gore in 2000 and John Kerry in 2004 dismisses talk of a presidential run; he jokes that he now leaves such speculation to the junior senator from Illinois, his friend and ideological ally Barack Obama. What he really wants, Durbin says, is to stop playing defense and to use what he refers to as “the most important forum in America” to define the Democratic Party as a vibrant alternative to the conservative brainlock that has settled over Washington.

“This is a critical moment for our party, but it is also a critical moment for our nation. Right now, we have to fight to prevent bad things from happening, but that’s not enough,” says Durbin.

“We need to be blunt about what distinguishes Democrats from Republicans on the issues that matter. You can do that as an opposition party. And if you do it right, you won’t be the opposition party for long.”

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