Democrats consider break with tradition to get Biden more judges
>> 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.
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, D-Conn. “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 Democraticappointed 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.
Durbin said he wants to continue with the blue slip tradition, but he's adding a caveat: that they aren't used for “discriminatory purposes” to block consideration of nominees based on race, gender or sexual orientation.
His comments have alarmed Republican senators. Sen. Lindsey Graham, R-S.C., said the blue slip courtesy is “very much at stake and at risk here.” He also questioned how Durbin is going to discern the motivations of Republicans senators if they object to a nominee.
“The last thing left in this body that makes the Senate the Senate, in my view, and gives a senator a say about a consequential decision in their state that will last a lifetime is the blue slip process,” Graham said. “So I would just hope we could agree, if possible, that no matter how frustrated we get, we're going to honor this system.”