How to stop a senator from blocking the appointment of a federal judge

Last February, Sen. Ron Johnson, R-wis., abruptly decided to block a nomination for a federal judgeship, though Johnson actually recommended the nominee just eight months before.

Why the reversal? It was never very clear. Johnson said it was because the candidate, Judge William Pocan of the Milwaukee County Circuit Court, didn’t live in Green Bay, where the federal district is. But Pocan didn’t live in Green Bay when Johnson first recommended him and, at any rate, offered to move to the city if he got the job. Was it because Pocan had something to do with the prosecutors’ decision to give low bail for a domestic violence defendant who later drove his car into a Wisconsin parade, killing six people? That’s what Johnson implied in his statement, though that accusation would be false: Pocan had nothing to do with the bail decision and was unconnected to the case.

Or was it because Johnson later learned that Pocan would have been the first openly gay federal judge in Wisconsin? That’s what Pocan’s brother, Mark Pocan, a Democratic congressman from the Madison area, charged in an interview, accusing the senator of homophobia. Johnson denied it.

In the end, none of these possible reasons, or the lack of them, really matter. Johnson refused to give his home-state permission for the nomination to proceed — declining to return what is known in the Senate as a blue slip — and the nomination stalled, expiring at the end of the Senate term in January. The White House has not renewed it.

The chair of the Senate Judiciary Committee, Richard Durbin of Illinois, fumed about Johnson’s decision at the time, saying he was disappointed by the last-minute turnabout and noting that Pocan had received nothing but praise and high ratings from lawyers.

But in fact, there was nothing formal that stopped Durbin from ignoring Johnson and proceeding with Pocan’s nomination. There is no rule or law that prevented him from sending it to the Senate floor for final approval. The only barrier was Durbin’s interpretation of an archaic Senate tradition of courtesy that allows senators to effectively veto federal district judge nominations from their own state for any reason or for no reason at all.

That home-state veto is a fundamentally undemocratic practice that gives far too much power to individual senators, as the editorial board wrote in 2014. Like the filibuster in all its forms, it allows vital Senate responsibilities to be controlled by small fractions of the chamber or even single members — powers never envisioned in the Constitution. Democrats have used it to block extreme candidates from Republican presidents when they were in the Senate minority. But as we noted in 2017, elections have consequences, and there will be times when Democrats will have to accept unpalatable judges in order for the Senate to operate along the principle of majority rule.

For now, though, it is Republicans who will have to accept the consequences of their failure to regain the Senate last November, and Durbin holds the power to make that happen. He could unilaterally end this blueslip custom at any time without requiring any kind of vote or radically upending an important Senate practice, just as Republicans decided to end it for appellate-level judges in 2018. That’s when President Donald Trump was the one nominating judges and Republicans wanted no interference in their goal of filling the circuit courts with conservatives.

It’s far past time for Durbin to do so. Republicans have worked for years to turn the entire judicial selection process into a proxy war for their ideological goals. Trump allowed the Federalist Society to pick his judges as part of their crusade to remake the federal courts, and the lack of home-state veto power is one of the reasons the appellate bench now contains so many unqualified and extremist choices. When in power, Republicans did their best to block President Barack Obama’s nominations, which is one reason there were so many openings when the Trump administration moved in.

That’s why appointing judges will be one of President Joe Biden’s most important tasks for the next two years, and many of the openings are in states with Republican senators. As former Sen. Russ Feingold, D-wis., said in an interview, Democrats would be “chumps” if they honored the blue slip veto system now, knowing that Republicans will almost certainly eliminate it for district judges if they take control of the Senate after the 2024 elections. In a recent letter to his colleagues, first reported by The Washington Post, Durbin urged both parties not to abuse the blue slip veto, hinting at changes ahead if Republicans do so.

The practice is hardly enshrined in Senate history. In fact, the Senate has been very inconsistent in how it has used blue slips, depending on the whims of the Judiciary Committee chair. For much of the 20th century, until about 1955, home-state senators could object to a nomination but not kill it. Sen. James Eastland, D-miss., a segregationist, changed that. He allowed individual senators to kill nominations to prevent federal judges from integrating schools in the South, as one of his successors as chair, Charles Grassley, R-iowa, noted years later.

When Biden ran the committee in the late 1980s and ’90s, he followed a practice similar to one instituted by Sen. Ted Kennedy, which did not let individual senators veto judicial nominations. A home-state senator could raise objections and refuse to return a blue slip, but that would be considered only an advisory opinion by the Judiciary Committee. Biden would let such nominations proceed, as long as the White House consulted with the two home-state senators before making the nomination. That would lend weight to the advice part of the Senate’s advice and consent responsibilities on nominations while not allowing a single senator to prevent consent.

That’s a process that Durbin should reinstitute. A senator who doesn’t want to seat a judicial nominee should step up and explain why and allow colleagues to evaluate the objection. Durbin is right to be frustrated by the impasse over judges; the Senate’s own traditions offer him a solution.

For much of the 20th century, home-state senators could object to a nomination but not kill it. Sen. James Eastland, D-miss., a segregationist, changed that. He allowed individual senators to kill nominations to prevent federal judges from integrating schools in the South.