J. Scott Applewhite/AP Photo
Sen. Dick Durbin (D-IL), chairman of the Senate Judiciary Committee, leads a hearing at the Capitol in Washington, August 3, 2022.
With the House having a slim Republican majority and the Senate having a slim Democratic majority, it seems unlikely that significant legislation will be passed in the next two years. But it’s the Senate alone, not the House, that confirms judicial nominees. One of the biggest things the Democratic-controlled Senate has the ability to do is to confirm judges for as many vacancies as possible.
Because of Senate rules, only a simple majority is needed for judicial confirmations, and Democrats, by virtue of Sen. Raphael Warnock’s victory in a runoff in Georgia this week, have 51 votes. This means that Senate confirmations will be even easier for the next two years, because Democrats will hold a majority on the Judiciary Committee, making it easier to vote out judicial nominees.
Under Trump, the Republican Senate was something of a judicial confirmation factory. In addition to confirming three Supreme Court justices, Mitch McConnell’s Republicans set a modern record for a single presidential term by confirming 54 circuit court judges and 174 district court judges.
In Biden’s first two years, he has confirmed one Supreme Court justice (Ketanji Brown Jackson), 26 circuit court judges, and 61 district court judges, which is not a bad start. With a Democratic president and Senate majority for the next two years, Democrats have the opportunity to rebalance the federal courts. As Russ Feingold, president of the American Constitution Society, a progressive judicial advocacy group, told me, “As of November 30, 54 nominees await Senate confirmation. At the same time, there are 115 current and known future vacancies on the federal courts, and there are at least an additional 175 judges who are eligible or will become eligible to take senior status over the next two years. In sum, the Senate should expect an abundance of new nominations in the new year, making it all the more urgent that it prioritizes existing nominees during the lame duck.”
But there’s an obscure procedural obstacle that Republicans are using to block many Democratic judicial confirmations, just as they’ve used the filibuster to block legislation. It’s called blue slips.
Blue slips are an arcane practice that appears nowhere in the law or the Constitution. Out of “courtesy,” the Senate Judiciary Committee will not send judicial nominations to the Senate floor for a confirmation vote unless and until both senators from the state in which the applicable federal court has jurisdiction have sent written confirmation that they endorse the nomination. The process is known as “blue slips” because senators would in earlier times send a blue slip of paper to the Judiciary Committee chair to let them know that they either approve or disapprove of a judicial nominee. Blue slips are a bit like the filibuster; if followed, they allow Republican senators to block confirmation of the judicial nominations of President Biden, even if they are supported by the Democratic majority.
When Trump was president and Republicans controlled the Senate from 2016 to 2018, Mitch McConnell scuttled blue slips for circuit court judges who hear appeals. The Republican Senate confirmed 17 Trump-appointed circuit court judges to whom their home-state Democratic senators objected and refused to submit blue slips.
While there have been 37 district court vacancies in states with two Republican senators, Biden has only managed to get one confirmed.
Under President Biden, the Senate has continued McConnell’s practice of not requiring blue slips for circuit court judges, but so far has continued to require them for district court judges, even though such requirements could be ended unilaterally by the Judiciary Committee chair, Sen. Dick Durbin (D-IL).
As a result, while there have been 37 district court vacancies in states with two Republican senators, Biden has only managed to get one confirmed. This tilts the balance in red states toward Republicans and creates inviting avenues for venue-shopping, where corporate litigants can file suit in district court where they are virtually assured of drawing a conservative judge and can be reasonably confident of a favorable opinion.
Durbin has unilateral power to dispense with blue slips if he so chooses. He could simply bring up Biden judicial nominees for a hearing and send a majority committee vote to the full Senate for final confirmation, whether home-state Republican senators object or not.
But Democratic leaders have so far been noncommittal about eliminating blue slips for district court judges. Durbin told The New York Times, “I’m going to keep an open mind. If I think it’s reached a point where the blue slip on district court judges is really not a question of temperament or philosophy or academic background and experience, but really gets down to some base issue involving race or gender, I reserve the right to revisit that.”
When asked by The American Prospect whether he had revisited the issue, Sen. Durbin’s communications director Emily Hampsten responded, “We have no change in the blue slip process to report at this time.”
In contrast to Sen. Durbin, Christopher Kang, chief counsel of Demand Justice, another progressive judicial advocacy group, told the Prospect, “Senate Democrats should do everything in their power to confirm as many Biden judges as possible over the next two years, and they must not allow Republicans to abuse the blue slip process and force dozens of vacancies to remain unfilled.” Kang added, “Without blue-slip reform, Republicans will limit President Biden’s impact on the courts, likely preventing him from fully matching Trump’s influence on the judiciary … we need Judiciary Chair Durbin to show he has the president’s back and will reform the blue-slip process to overcome Republican obstructionism.”
Feingold added, “The Senate should use every tool at its disposal to confirm diverse, qualified judges who are committed to the rule of law and to vindicating fundamental rights. This includes maximizing the lame duck to confirm at least 30 nominees and reforming the blue-slip process.”
So far, according to Demand Justice, in lieu of eliminating blue slips for district court judges, Democrats have been searching for “work-arounds” by trying to negotiate compromise candidates with Republican senators for judgeships in red states. According to Jill Dash of the American Constitution Society, Democrats are “not putting the same kinds of nominees in red or purple states as blue states.”
This may occasionally work to advance more conservative judges than necessary in purple states with one Republican and one Democratic senator. But it will almost completely stall nominations in states with two Republican senators. It’s hard to imagine what kind of judges Ted Cruz and John Cornyn would approve for Texas. That will make Texas ground zero for conservatives who seek a friendly judge for their ideological priorities.
As Christopher Kang told me, “Americans who live in states with Republican senators are no less deserving of equal justice under the law, and taking blue slips off the table will enable the White House to pick the same type of diverse nominees as they have in states with Democratic senators and bring greater balance to all of our courts.”
