With the 118th Congress underway, the Senate’s process of evaluating President Joe Biden’s judicial nominations has resumed. This means that, joining death and taxes on the certainty list, is pressure for the majority to rig the process by abandoning the “blue slip” process that gives deference to senators in whose state a judicial nominee would serve.
When there was a Republican president and GOP-controlled Senate, Democrats defended that tradition as an essential part of the judicial confirmation process. Now in charge, with a Democrat in the White House and in control of the Senate, Democrats are singing a very different tune in trying to remove any potential obstacles to President Joe Biden stacking the federal bench.
After Democrats used a parliamentary maneuver in 2013 to abolish nomination filibusters in the Senate, the blue slip courtesy is about the only speed bump, the only check, on a president’s judicial appointments when his party controls the Senate.
On May 7, 2018, while in the minority, Sen. Mazie Hirono, D-Hawaii, a Judiciary Committee member, tweeted what blue slips are really about: “consultation with home state senator to ensure judicial nominees in their states are highly qualified.” The next day, she joined Judiciary Committee Democrats in releasing a report stating that changing the blue slip tradition would be “cutting senators out of the process.”
Though not required by the Constitution or Senate rules, the blue slip courtesy allows home state senators to register their support or opposition on a blue slip of paper.
Most Judiciary Committee chairmen have said that a negative blue slip will be given significant weight, but will not be an absolute veto if the White House consulted with those home state senators to find an acceptable nominee. In practice, nominees to the U.S. District Court, and many nominees to the U.S. Court of Appeals, are denied a hearing without the support of both home state senators.
In the past, the question was whether a negative blue slip would be treated as just input or a veto. Today, it’s about whether the tradition should exist at all. Senate Democrats are facing pressure from their liberal allies to abandon the tradition completely.
It’s not as though Biden has faced significant obstacles in appointing judges. As The Heritage Foundation’s Judicial Appointment Tracker shows, to date, he has appointed 13.5% of all the judges on life-tenured federal courts, compared with an average of 11.4% for his six predecessors at this same point in their presidencies. (The Daily Signal is the news outlet of The Heritage Foundation.)
This confirmation success is especially robust since only 5.3% of the federal judiciary was vacant when Biden took office, much lower than the average 8.5% that his predecessors faced on Inauguration Day.
Speaking of Biden, he established the current use of the blue slip when, as a senator, he chaired the Judiciary Committee in the early 1990s. Biden emphasized that the potential for confirmation trouble should be an incentive for the White House to work with a judicial nominee’s home state senators.
Why do Senate Democrats oppose a tradition they once said was so important? Why would they want to abandon a tool for increasing cooperation between the White House and Senate? They answered that question in the 2018 report they issued, arguing that restricting the effectiveness of the blue slip courtesy “undermined the vetting process … in order to advance the president’s picks.”
Here’s an example of the hypocrisy. Sen. Richard Blumenthal, D-Conn., serves on the Judiciary Committee and added his name to the 2018 report advocating a robust blue slip process. Today, however, in the Senate majority and with a Democrat in the White House, Blumenthal says that he feels “no love or allegiance to blue slips.”
Or consider Sen. Dick Durbin, D-Ill., the current Judiciary Committee chairman. He also signed the 2018 report that criticized “outside groups” for “push[ing] for the elimination of the blue-slip tradition.” And yet, now that liberal groups are the ones pushing Senate Democrats, Durbin sent a letter to all senators dated Jan. 3 with a thinly veiled threat to abandon the blue slip courtesy if Republicans fail to “move swiftly.”
The current 51-49 partisan split in the Senate is even narrower than in 2013, when Democrats undermined the minority by abolishing nomination filibusters.
This is a particularly tenuous situation in which to take another step toward single-party dominance over the judiciary by abandoning the blue slip tradition.
Many Democratic senators expressed regret about abolishing the nominations filibuster after President Donald Trump took office and the Republicans attained a majority in the Senate.
You would think that they would have learned a fundamental lesson: What goes around comes around.
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