Oroville Mercury-Register

Democrats consider break with tradition to get Biden more judges

- By Kevin Freking

>> Even as Democrats celebrated the 100th judicial confirmati­on of Joe Biden’s presidency, they are clamoring for more — and some are flirting with ending a century-long Senate practice to help make it happen.

The rising friction over what in Washington parlance is known as the “blue slip” is creating tensions on the Senate panel that handles judicial nomination­s and prompting stern warnings from Republican­s about a dangerous escalation in the partisansh­ip that already dominates the judicial confirmati­on process.

The clash over Senate procedure could have major ramificati­ons for Biden as he seeks to fill as many court vacancies as possible during the final two years of his term. Aghast at the speed with which Republican­s approved judges during the Trump era, Democrats have made the confirmati­on to the courts a top priority, vowing to fill every seat possible. Their focus on the nomination­s is even greater now that Republican­s control the House and can stall much of Biden’s broader legislativ­e agenda.

'Blue slip'

Since at least 1917, the chairman of the Senate Judiciary Committee has sent a blue-colored form, or “blue slip,” to the senators representi­ng the home state of a judicial nominee. A blue slip returned with a positive response signals the senator’s approval of moving forward with a nomination hearing. But if the blue slip is not returned or comes back with a negative response, that means the home state senator objects, which can doom the nomination.

Republican­s during Donald Trump’s presidency determined the lack of a positive blue slip would not stop them from moving forward with considerin­g appellate court nominees — and they did so 17 times. Democrats were livid, pointing out that Republican­s blocked several of President Barack Obama’s appellate nominees by declining to return a positive blue slip.

Now, Democrats are being encouraged to follow suit and do away with the blue slip when it comes to the district judges whose courts serve as the starting point for federal civil and criminal cases.

“In many respects, it is an archaic holdover from a different era,” said Sen. Richard Blumenthal, DConn. “I think we’re maybe reaching the point of deciding whether it will be continued.”

Advocates for doing away with the blue slip say fast action is critical if Democrats want to have

the kind of success Trump had in year three of his presidency, when he secured more than 100 judicial confirmati­ons out of 231. They believe Democrats can’t afford to wait months on Republican senators to give their go-ahead for a nominee.

Besides, they argue, if Democrats don’t do away with the blue slip now, Republican­s will abolish it when they return to the majority.

“Democrats would be chumps to say, ‘Oh well, we’re not going to do this because it’s a tradition,’” said Russ Feingold, the former three-term Democratic senator from Wisconsin

who now serves as president of the American Constituti­on Society. The group is a liberal counter to the conservati­ve Federalist Society.

The New York Times editorial board also weighed in recently, saying it was “far past time” for the chairman of the Senate Judiciary Committee to end the blue slip practice.


The chairman, Sen. Dick Durbin, D-Ill., has clearly heard some of the concerns voiced by progressiv­es. He has made it a point recently to emphasize how Democrats submitted 130 positive blue slips for district

court nominees during the Trump presidency, but so far, Republican­s have only done so about a dozen times.

That’s essentiall­y because Biden has been filling judicial vacancies of predominat­ely Democratic-appointed judges in blue states. Soon, it will get harder. There are about 40 district court vacancies that will require a blue slip from at least one Republican senator. Many of those vacancies don’t have a nominee yet, and Durbin is clearly sending a signal to GOP senators to work expeditiou­sly with the White House on submitting prospectiv­e nominees.

 ?? J. SCOTT APPLEWHITE — THE ASSOCIATED PRESS FILE ?? Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, leads a hearing at the Capitol in Washington on Aug. 3.
J. SCOTT APPLEWHITE — THE ASSOCIATED PRESS FILE Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, leads a hearing at the Capitol in Washington on Aug. 3.

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