WASHINGTON (AP) — 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 practice in the Senate to help make it happen.
The growing friction over what is known in Washington parlance as the “blue slip” is creating tension in the Senate panel that handles judicial nominations and prompting stark warnings from Republicans about a dangerous escalation of 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 vacancies as possible during the final two years of his term. Appalled by the speed with which Republicans have confirmed judges in the Trump era, Democrats have made judicial confirmation 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 stop 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 candidate. A blue slip returned with a positive response signals the senator’s approval to proceed with a nomination hearing. But if the blue slip isn’t returned or comes back with a negative answer, it means the home state senator objects, which could doom the nomination.
Republicans during Donald Trump’s presidency determined that the lack of a positive blue slip would not prevent them from moving forward with considering nominees for the appeals court — and they did so 17 times. Democrats were furious, pointing out that Republicans blocked several of President Barack Obama’s appeal candidates by refusing to return a positive blue slip.
Now, Democrats are being urged 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’s an archaic survival from another era,” said Sen. Richard Blumenthal, D-Conn. “I think we may be reaching the point where we have to decide whether it will continue.”
Advocates of doing away with the blue slip say swift action is essential if Democrats want to have the kind of success Trump enjoyed in year three of his presidency, securing more than 100 judicial confirmations out of 231. They believe , that Democrats cannot afford to wait months for Republican senators to give their go-ahead for a nominee.
Moreover, they claim that if Democrats do not end the blue slip now, Republicans will abolish it when they return to the majority.
“Democrats would be fools to say, ‘Oh well, we’re not going to do this because it’s a tradition,'” said Russ Feingold, the former Democratic senator from Wisconsin who now serves as president of the American Constitution Society. The group is a liberal counterpart to the conservative Federalist Society.
The New York Times editorial also weighed in recently, saying it was “long overdue” 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 expressed by progressives. He’s made it a point recently to emphasize how Democrats submitted 130 positive blue slips to district court nominees during Trump’s presidency, but so far Republicans have only done so about a dozen times.
That’s mainly because Biden has filled vacant judgeships with predominantly Democratic-appointed judges in blue states. Soon it will be more difficult. There are about 40 district court vacancies that would require a blue slip from at least one Republican senator. Many of those vacancies do not yet have a nominee, 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 blue slip tradition, but he adds a caveat: that they not be used for “discriminatory purposes” to block consideration of nominees based on race, gender or sexual orientation.
His comments have alarmed Republican senators. Late. Lindsey Graham, RS.C., said the blue slip courtesy is “highly at stake and at risk here.” He also questioned how Durbin will discern the motives of Republican senators if they object to a nominee.
“The last thing left in this body that I think makes the Senate the Senate and gives a senator a say in a decision of consequence in their state that will last a lifetime is the blue slip process,” Graham said . “So I I just hope that if possible we could agree that no matter how frustrated we get, we will respect this system.”
So far, only one Biden nominee for a district court has had their nomination derailed because a senator withheld a blue-ticket nominee, William Pocan, nominee for the Eastern District of Wisconsin. Republican Sen. Ron Johnson withheld his blue slip and said he had heard concerns from Green Bay’s legal community that they needed a judge locally based and active in their community.
Late. John Cornyn, R-Texas, said complaints about the blue slip are “orchestrated and contrived.” He said he and Sen. Ted Cruz, R-Texas, were asked by the White House to submit names for a vacancy on the appeals court. within three weeks, which they did.
“And eight months later, the administration is finally getting around to nominating someone,” Cornyn said. “We have two vacancies in the district court where we have not been contacted at all by the White House counsel. So most of the delay is because the administration has been slow to fill these nominees, these vacancies.”
Cornyn compared the effort to end the blue slip to Democratic calls to end the filibuster so that the legislation would only require a simple majority to move forward instead of 60 votes.
“They want to fully dismantle the Senate as an institution,” he said.
Proponents of the blue slip say its most important function is to encourage cooperation and compromise. Durbin said he presented eight positive blue slips after negotiating nominees with the Trump White House. “I had to give a little. They did too,” he said.
But Feingold, who has served 16 years on the Judiciary panel and 18 years in the Senate, said he believes presidents will continue to consult with senators about judicial openings, even without the blue slip, because they need a lawmaker’s votes on other priorities.
“You have to consult them anyway, because if you try to shove it down somebody’s throat really bad, they’re going to remember,” Feingold said.
Blumenthal said he will bring lessons learned from the Obama years to the debate, and he is determined not to let Republicans block district judges through the blue slip process, as they did with appeals court judges.
“The history is undeniable that the Republicans succeeded in blocking many of the Obama nominees and therefore kept judicial vacancies open, which they then filled with aplomb,” Blumenthal said. “We will not let that happen again.”
