With the 2018 midterm elections looming and a Supreme Court vacancy in play, Senate Democrats have refused to say whether they would block a nominee if they retook the majority. The silence is deliberate, and it exposes a party caught between its own rhetoric and the procedural precedents it helped create.
As Courthouse News Service reported, Democratic senators have repeatedly sidestepped direct questions about what they would do with a Supreme Court nomination if they controlled the Senate after the midterms. Rather than lay out a clear strategy, party leaders have deflected, pivoted to criticism of Republican tactics, or simply declined to engage with the hypothetical.
The evasion is striking given how loudly Democrats protested when Senate Majority Leader Mitch McConnell refused to hold hearings on President Obama's 2016 nominee, Merrick Garland. At the time, Democrats framed the blockade as an unprecedented breach of Senate norms. Now, facing questions about whether they would employ similar tactics, the party's leading voices have gone quiet.
No senator illustrates the tension better than Illinois Democrat Dick Durbin, the party's whip. In 2016, Durbin was among the loudest voices demanding that the Senate vote on Garland's nomination. He called McConnell's refusal to hold hearings a dereliction of constitutional duty.
By 2018, Durbin had reversed course. He argued that the Senate should not vote on President Trump's Supreme Court nominee until after the midterm elections. When NBC's Chuck Todd pressed him on the contradiction during an interview, as the Washington Free Beacon documented, Durbin brushed the question aside. Todd put the inconsistency directly to him:
"I understand you want to point out hypocrisy on McConnell's side, but there is hypocrisy for you, too. If it was wrong in 2016, is it wrong now?"
Durbin's response did not address his own reversal. Instead, he redirected to McConnell:
"Come on, Chuck, get real. Senator McConnell invented this new rule and wouldn't consider a meeting with Merrick Garland."
The exchange captured a pattern that has defined the Supreme Court confirmation wars: each side accuses the other of breaking norms while quietly adopting the same tactics when it suits them.
The confirmation battles did not begin with Garland. In 2013, then-Majority Leader Harry Reid triggered what became known as the "nuclear option," eliminating the filibuster for lower federal court nominees. Reid's move allowed Democrats to confirm Obama's judicial picks with a simple majority rather than the traditional 60-vote threshold.
McConnell warned at the time that Democrats would regret the change. He proved right. In 2017, McConnell extended Reid's precedent to Supreme Court nominees, clearing the path for Neil Gorsuch's confirmation with just 51 votes. The same simple-majority threshold has governed every high court confirmation since.
That procedural reality left Democrats with almost no leverage. Durbin himself acknowledged as much during the 2020 fight over Amy Coney Barrett's nomination. Speaking on ABC's "This Week," as National Review reported, Durbin conceded the math was against his party:
"We can slow it down perhaps a matter of hours, maybe days at the most. But we can't stop the outcome."
Only two Republican senators, Susan Collins and Lisa Murkowski, opposed holding a vote on Barrett's nomination. That left Democrats well short of the numbers needed to block confirmation. Republicans needed only 50 votes, with Vice President Pence available as a tiebreaker.
Durbin's posture on Barrett stood in contrast to some of his colleagues who called for boycotting the hearings entirely. He said he would meet with Barrett and participate in the Senate Judiciary Committee proceedings, which were scheduled to begin October 12 with a committee vote expected by October 26.
He framed his willingness to engage as a matter of institutional seriousness rather than political capitulation:
"We're talking about someone who will be on the highest court in the land for the remainder of her life, and I take that seriously."
That statement carried a different tone than his 2018 refusal to support a pre-midterm vote on Trump's nominee. The shift suggested that Durbin's approach to confirmation fights depended less on fixed principle than on the political circumstances of the moment.
The broader Democratic caucus has followed a similar pattern. When asked directly whether a post-midterm Democratic majority would refuse to seat a Trump nominee, senators have consistently avoided giving a straight answer. The non-responses suggest internal division over how far the party should go in escalating the confirmation wars.
Some Democrats have argued privately that turnabout is fair play. McConnell held the Garland seat open for nearly a year, and some in the caucus believe Democrats should be willing to do the same if they hold the gavel. Others worry that open obstruction would alienate moderate voters and confirm Republican claims that Democrats care more about the Court's ideological balance than its institutional legitimacy.
The refusal to commit either way lets Democrats avoid both risks. It also leaves voters without a clear picture of what a Democratic Senate majority would mean for the Court.
The trajectory of confirmation politics over the past decade tells a consistent story. Reid eliminated the filibuster for lower courts when Democrats held the majority. McConnell extended that precedent to the Supreme Court when Republicans took control. McConnell blocked Garland when it served his party's interests. Democrats now hint they would do the same.
Each escalation has been framed as a response to the other side's bad faith. Each has made the next escalation easier to justify. The result is a confirmation process that functions less as a deliberative exercise and more as a raw exercise of majority power.
Durbin's inability to answer a simple question about consistency captures the dynamic perfectly. When Todd asked whether it was wrong to block a vote in an election year, Durbin could not say yes without condemning his own 2018 position. He could not say no without abandoning the argument he made for Garland in 2016.
So he changed the subject.
Authorities on Senate procedure have noted that the elimination of the judicial filibuster removed the minority party's most powerful tool for shaping the Court. Without it, the confirmation process reduces to a simple question: does the president's party hold 50 seats?
If Democrats retake the Senate in the midterms, they will face the choice they have so far refused to discuss publicly. A Supreme Court vacancy would force the question into the open. At that point, the party's leaders would have to decide whether to apply the same election-year standard they demanded McConnell follow in 2016, or whether to adopt the very tactics they spent two years condemning.
Investigators of Senate procedure will not need to look far for precedent. Both parties have now established that confirmation norms bend to fit the majority's preferences. The only question is which side holds the gavel when the next seat opens.
When the rules change with every election, they stop being rules. They become leverage. And leverage belongs to whoever has the votes.
