WASHINGTON (AP) — Even as Democrats celebrate 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 make it happen.
Growing friction over what is known in Washington parlance as the “blue slip” is fueling tensions in the Senate panel that handles judicial nominations and leading to stern warnings from Republicans about a dangerous escalation in the partisanship that already dominates the judicial confirmation process .
The clash over Senate proceedings could have major implications for Biden as he looks to fill as many vacancies as possible in the courts during the last two years of his term. Appalled at the speed with which Republicans approved judges during the Trump era, Democrats have made confirmation in the courts a top priority and vowed to fill every possible seat. Their focus on the nominations is even greater now that Republicans control the House and can hold back much of Biden’s broader legislative agenda.
Since at least 1917, the chairman of the Senate Judiciary Committee has mailed a blue-colored form or “blue slip” to the senators representing a judicial candidate’s home state. A blue slip returned with a positive answer indicates the senator’s approval. But if the blue slip is not returned or answered negatively, it means the home state senator objects, which could doom the nomination.
Republicans during Donald Trump’s presidency were determined that the lack of a positive blue slip wouldn’t stop them from continuing to consider candidates for the appeals court — and they did 17 times. Democrats were outraged, pointing out that Republicans blocked several of President Barack Obama’s appellate nominees by refusing to return a positive blue slip.
Now Democrats are being encouraged to follow suit and abolish the blue slip when it comes to the district judges whose courts serve as the premise for federal civil and criminal cases.
“In many ways, it’s an archaic holdover from another era,” said Senator Richard Blumenthal, D-Conn. “I think we may be reaching the point of deciding whether it will continue.”
Proponents of abolishing the blue slip say swift action is critical if Democrats are to have the kind of success Trump had in the third year of his presidency, when he secured more than 100 judicial confirmations out of 231. They believe Democrats cannot afford to wait months for Republican senators to endorse a candidate.
Moreover, they reason, if the Democrats don’t do away with blue slip now, the Republicans will do away with it when they return to the majority.
“Democrats would be stupid 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 is now president of the American Constitution Society. The group is a liberal counterpart to the conservative Federalist Society.
The New York Times editorial board also recently weighed in, saying it was “well past time” for the Senate Judiciary Committee chair to end the blue slip practice.
The chairman, Senator Dick Durbin, D-Ill., has clearly heard some of the concerns of progressives. He recently made it a point to highlight how the Democrats filed 130 positive blue slips for district court nominees during Trump’s presidency, but so far the Republicans have only done so a dozen times.
That’s essentially because Biden has filled judicial vacancies of mostly Democratic-appointed judges in blue states. Soon it will be more difficult. There are about 40 district court positions that require a blue slip from at least one Republican senator. Many of those vacancies do not yet have a candidate, and Durbin is clearly sending a signal to GOP senators to vigorously work with the White House to nominate potential candidates.
Durbin said he wants to continue the blue slip tradition, but adds a caveat: that they will not be used for “discriminatory purposes” to block consideration of nominees based on race, gender or sexual orientation.
His comments have alarmed Republican senators. Senator Lindsey Graham, RS.C., said blue slip courtesy is “highly at stake and at risk here.” He also wondered how Durbin is going to discern the motivations of Republican senators when they object to a candidate.
“The last thing left in this body that makes the senate the senate, in my opinion, and gives a senator a say in a resultant decision in their state that will last a lifetime is the blue slip process,” Graham said. I just hope we can agree that no matter how frustrated we get, we will honor this system.”
So far, the nomination of only one Biden candidate to a district court has been derailed because a senator withheld a blue slip, William Pocan, nominee for the Eastern District of Wisconsin. Holding back his blue slip, Republican Senator Ron Johnson said he had heard concerns from the Green Bay legal community that they needed a local judge active in their community.
Senator John Cornyn, R-Texas, said complaints about the blue slip are “orchestrated and contrived.” He said he and Senator Ted Cruz, R-Texas, were asked by the White House to submit names for an appeals court vacancy within three weeks, which they did.
“And eight months later, the administration finally gets around to nominating someone,” Cornyn said. the administration has been slow to fill these candidates, these vacancies.”
Cornyn compared efforts to end the blue slip to Democratic calls to end the filibuster so that legislation would need only a simple majority to pass instead of 60 votes.
“They want to completely dismantle the Senate as an institution,” he said.
Proponents of the blue slip say its main feature is to encourage collaboration and compromise. Durbin said he provided eight positive blue slips after negotiating nominees with the Trump White House. “I kind of had to give in. They did,” he said.
But Feingold, who served 16 years on the judicial panel and 18 years in the Senate, said he believes presidents will continue to consult senators on judicial openings even without the blue slip because they need a legislature’s votes for other priorities.
“You have to consult them anyway, because if you try to shove someone really bad down their throat, they’re going to remember it,” Feingold said.
Blumenthal said he will bring into the debate the lessons he learned from the Obama years, and he is determined not to let Republicans block district judges through the blue slip process, as they did the Supreme Court justices. appealed.
“There’s no denying that the Republicans managed to block many of the Obama nominees and therefore filled open judges, which they then filled with enthusiasm,” Blumenthal said. “We won’t let that happen again.”
