Senate Dems take a page from GOP in judicial nominee wars

Feb 17, 2021

Senate Democrats are planning to continue the GOP’s approach to giving home-state senators veto power over lower court nominees — while granting freer rein to President Joe Biden’s circuit court nominees.

The policy that incoming Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) is pursuing would make no change to the so-called "blue slip" process that Republicans changed in 2017 to yank home-state senators’ power to block former President Donald Trump’s circuit court picks. While Democrats criticized Republicans for scrapping blue slips for Trump, they’re now signaling that after four years of bruising judicial confirmation battles, they’re not going to reinstate the obscure tradition they had defended.

“Chair Durbin has said on a number of occasions that there cannot be one set of rules for Republican nominees and another set of rules for Democratic nominees,” said a Senate Judiciary Committee Democratic aide.

Then-Judiciary chair Sen. Chuck Grassley (R-Iowa) cited delays from Democrats when he did away with blue slips for circuit court nominees in 2017 while preserving the prerogative for home-state senators to object to district court nominees. But the issue has been a point of contention ever since, particularly as Senate Republicans confirmed 54 circuit court judges as part of a broader march to reshape the federal bench with new conservative appointments.

Democrats returned blue slips for more than 85 district court nominees over the past four years, the Democratic committee aide noted — a high number that leaves the new majority optimistic that the GOP would take a similar approach. The blue-slip process typically affords outsized power to senators from the opposite party of the White House who represent states with federal court vacancies by giving them the authority to nix the president’s picks.

Three of the 50 Republican senators currently represent states that Biden won in November: Susan Collins of Maine, Ron Johnson of Wisconsin and Pat Toomey of Pennsylvania,

“It’s our expectation that Republicans likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states,” the aide said.

Durbin’s decision to keep blue slips for district court nominees isn’t necessarily final. And it could frustrate progressives who want to see the tradition disbanded altogether.

“I do think [blue slips] should be scrapped. I think they should be scrapped for circuits as well as districts,” said Christopher Kang, chief counsel at Demand Justice, a liberal judicial advocacy group.

“You’re ending up with two tracks of justice, where Americans living in a state represented by a Republican senator might have very different judges than one who lives in a state represented by Democratic home state senators," he added.

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