With Democrats hoping to confirm dozens more federal judges following President Joe Biden’s milestone of appointing 100 new members of the judiciary, progressives on Friday said the party has no choice but to eliminate a tradition they say has been exploited by Republicans to block the president’s nominees.
Advocacy group Alliance for Justice said Democratic leaders, particularly Senate Judiciary Committee Chair Dick Durbin (D-Ill.) must make a choice: They can “transform our federal courts by confirming so many more judges with a respect for the rights of all of us,” or they can allow Republicans to continue the tradition of using so-called “blue slips” to reject nominees.
The Senate “can’t do both,” said the group.
Under the blue slip practice, which is not an official Senate rule, senators can unilaterally block federal district court judge nominees from being considered by the committee if the nominee is from their home state. Only if they submit a “blue slip” for the judge can the nomination proceed.
Prior to last year’s midterm elections, Durbin said the party has “made it work” and would continue to abide by the blue slip tradition, but earlier this month he said he will no longer honor the withholding of a blue slip if he believes it “discriminates because of race, gender, or sexual discrimination.”
Republicans including Sens. Lindsey Graham (R-S.C.) and Marsha Blackburn (R-Tenn.) have protested, with the latter claiming the practice is “essential to the Senate’s constitutional obligation to provide advice and consent.”
But as NBC News reported this week, Durbin noted Republicans have made clear that they’re intentionally using the tradition to block Biden’s nominees, submitting only 12 blue slips since Biden took office, compared to the 120 Democrats submitted under the Trump administration.
Also under former President Donald Trump, Republicans in control of the Judiciary Committee at the time did away with the use of blue slips for circuit nominees and as a result rapidly confirmed 54 judges to the circuit court.
Demand Justice noted that under the Obama administration, Republicans blocked 17 judicial nominees using the practice.
During the Obama presidency, Republicans abused blue slips to block a diverse group of 17 highly qualified judicial nominees.— Demand Justice (@WeDemandJustice) February 23, 2023
Chair Durbin needs to reform the blue slip to keep the same from happening during the Biden presidency. pic.twitter.com/MiKyjlWM9Y
American Constitution Society President Russ Feingold, a former Democratic senator, toldNBC News the Democrats “would be chumps to not get rid of [blue slips] for this Congress, in order to allow them some opportunity to make up for the very aggressive tactics used by Republicans over the prior four years.”
“When Republicans had the advantage, they just didn’t hesitate to eliminate blue slips for the courts of appeals, which are an even higher court,” he said.
Senate Majority Leader Chuck Schumer (D-N.Y.) has said he wants his party to top the 234 federal judges the Republicans confirmed in four years. There are currently 72 district court vacancies and nine open seats on appeals courts.
To secure judicial seats, said Meagan Hatcher-Mays, director of democracy policy for Indivisible, Democrats must “be for real” and recognize that the question of whether to continue to allow blue slips is “existential.”
“Republicans have used [blue slips] to successfully keep seats open on the federal bench in their states, not because they have an objection to Biden’s nominees on the merits, but because they want to hold seats open in the hopes that a future MAGA president will install even more anti-abortion, anti-democracy federal judges instead,” said Hatcher-Mays.
“President Biden’s judicial nominees have been exceptional and among his signature achievements throughout his presidency,” she added. “Senate Democrats should eliminate every barrier possible to continue to confirm his nominees at a historic pace, including getting rid of blue slips.”