WASHINGTON (AP) — Even as Democrats celebrated the 100th judicial confirmation of Joe Biden’s presidency, they’re calling for more — and some are flirting with ending a century-old Senate practice to help make it happen.
Growing friction over what in Washington parlance is known as the ‘blue slip’ is creating tension in the Senate panel that handles judicial appointments and prompting stern warnings from Republicans about a dangerous escalation partisanship that already dominates the judicial confirmation process.
The dispute over Senate procedure could have major ramifications for Biden as he seeks to fill as many vacancies as possible in the final two years of his term. Appalled by the speed with which Republicans approved judges in the Trump era, Democrats have made court confirmation a top priority, vowing to fill every possible seat. Their focus on nominations is even greater now that Republicans control the House and can block 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 senators representing the home state of a judicial nominee. A blue slip returned with a positive response signals the senator’s approval. But if the blue slip is not returned or comes back with a negative answer, it means that the senator of the state of origin opposes it, which can condemn the nomination.
Republicans during Donald Trump’s presidency determined that the lack of a positive blue slip wouldn’t stop them from moving forward with reviewing appeals court nominees – and they did. 17 times. Democrats were livid, pointing out that Republicans blocked several of the candidates on President Barack Obama’s call by refusing to return a positive blue slip.
Now, Democrats are encouraged to follow suit and eliminate the blue slip when it comes to district judges whose courts serve as the starting point for federal civil and criminal cases.
“In many ways, this is an archaic holdover from another era,” said Sen. Richard Blumenthal, D-Conn. “I think we may be getting to the point of deciding if this is going to continue.”
Supporters of scrapping the blue slip say quick action is essential if Democrats are to have the kind of success Trump had in the third year of his presidency, when he secured more than 100 court confirmations on 231. They think Democrats can’t afford to wait months for Republican senators to give the go-ahead for a nominee.
Also, they argue, if Democrats don’t scrap the blue slip now, Republicans will scrap it when they return to a majority.
“Democrats would be silly to say, ‘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 Constitutional 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 “long past” for the chairman of the Senate Judiciary Committee to end the practice of the blue slip.
The chairman, Sen. Dick Durbin, D-Ill., clearly heard some of the concerns expressed by progressives. He recently made a point of pointing out how Democrats have submitted 130 positive blue slips for candidates to district courts during the Trump presidency, but so far Republicans have only done so a dozen times. .
That’s basically because Biden has filled vacancies for mostly Democratic-appointed judges in blue states. Soon it will become more difficult. There are about 40 district court vacancies that will require a blue slip from at least one Republican senator. Many of these vacancies do not yet have a candidate, and Durbin is clearly sending a signal to GOP senators to work quickly with the White House to submit potential nominees.
Durbin said he wants to continue the tradition of blue slips, but he adds a caveat they are not used for ‘discriminatory purposes’ to block consideration of applicants based on their race, gender or their sexual orientation.
His remarks alarmed Republican senators. Senator Lindsey Graham, RS.C., said the courtesy of the blue slip is “very much at stake and at risk here.” He also asked how Durbin would discern the motives of Republican senators if they opposed 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 consecutive decision in his state that will last a lifetime is the blue slip process,” said said Graham. I just hope we could agree, if possible, that no matter how frustrated we are, we’re going to honor this system.”
So far, only one Biden nominee for district court has had his nomination derailed because a senator held back a blue slip, William Pocan, nominated in the Eastern District of Wisconsin. Republican Sen. Ron Johnson withheld his blue slip, saying he heard concerns from the Green Bay legal community that they needed a judge who was locally based and active in their community.
Sen. John Cornyn, R-Texas, said the blue slip complaints were “orchestrated and contrived.” He said he and Sen. Ted Cruz, R-Texas, were asked by the White House to submit names for a vacancy to the appeals court within three weeks, which they did.
“And eight months later, the administration finally gets to appoint someone,” Cornyn said. “We have two vacancies in the district courts where we have not been contacted at all by White House counsel. The administration has been slow to fill these candidates, these vacancies.”
Cornyn likened efforts to end the blue slide to calls by Democrats to end the filibuster so that legislation only needs a simple majority to move forward rather than 60 votes.
“They want to completely dismantle the Senate as an institution,” he said.
Proponents of the blue slip say its most important feature is to encourage collaboration and compromise. Durbin said he provided eight positive blue slips after negotiating candidates with the Trump White House. “I had to give a little. They did too,” he said.
But Feingold, who served 16 years on the judiciary panel and 18 in the Senate, said he thinks presidents will continue to consult senators on court openings even without the blue slip because they need the votes of a legislator on other priorities.
“You have to consult them anyway because if you try to jam someone really badly down their throat, they’re going to remember it,” Feingold said.
Blumenthal said he would bring lessons learned from the Obama years to the debate, and he’s determined not to let Republicans block district judges in the blue-slip process like they did for court judges. call.
“The story is undeniable that Republicans successfully blocked many Obama candidates, and therefore held open judging posts, which they then eagerly filled,” Blumenthal said. “We are not going to let this happen again.”