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biden judges
'We're Not at That Point': Durbin Rejects Calls to Drop Archaic Blue Slip Norm for Judges
One advocate said that by keeping the blue slip tradition intact, Sen. Dick Durbin is endorsing "the worst kind of extreme Republican obstructionism."
Apr 19, 2023
The Democratic chair of the Senate Judiciary Committee said Tuesday that he is not ready to ditch the arcane tradition that has given individual Republican lawmakers veto power over nominees for federal court seats in their home states.
"We're not at that point yet," Sen. Dick Durbin (D-Ill.) told HuffPost when asked if he's considering scrapping the so-called "blue slip courtesy"—a non-binding rule that Republicans tossed aside for circuit court nominees when they last controlled the Senate.
When a senator returns a blue slip, they are indicating they will allow a judicial nomination to proceed. Earlier this month, Sen. Cindy Hyde-Smith (R-Miss.) announced she would not be returning a blue slip for Scott Colom, who President Joe Biden nominated to serve on the U.S. District Court for the Northern District of Mississippi.
But Hyde-Smith's decision, which effectively tanked Colom's nomination even though he had bipartisan support in the Senate, wasn't enough for Durbin to abandon the blue slip process—though he said earlier this week that "her conduct and the timing of her decision have made it extremely difficult" to preserve the tradition.
On top of the extended and indefinite absence of Sen. Dianne Feinstein (D-Calif.), Durbin's continued adherence to the blue slip rule has allowed Republicans to dramatically slow the judicial confirmation process, leaving open dozens of vacancies as right-wing judges they've approved in recent years wreak havoc across the country.
In remarks during a Senate Judiciary Committee hearing on Tuesday, Durbin said the blue slip process "has a long history, but there have been instances of success and failure."
"We have an illustration of success today," Durbin said, noting that three Biden nominees received blue slips from senators who represent their home states, including Sens. John Kennedy (R-La.) and Bill Cassidy (R-La.).
But as HuffPost's Jennifer Bendery noted, Durbin "has so many reasons to nix" the non-binding rule, something he can do unilaterally.
"Democrats returned more than 130 blue slips during the Trump admin, confirming 84 district judges in states with at least one or two Dem senators," Bendery wrote on Twitter. "More than two years into the Biden admin, Republicans have returned 13 blue slips. That's as of last month."
"Progressive judicial groups are practically shouting from the mountaintops to ditch blue slips," Bendery continued. "Republicans did it for years with Trump's court picks, as Dems fumed from the sidelines. The result? Trump confirmed a massive [number] of right-wing ideologues to lifetime court seats."
\u201cThe blue slip rule isn't an official Senate rule.\n\nIt\u2019s a committee tradition; a senatorial courtesy.\n\nDurbin could do away with it today if he wanted. Republicans ignored it when Trump was president. They confirmed piles of his judges against Dems' wishes, from their states.\u201d— Jennifer Bendery (@Jennifer Bendery) 1681855461
Chris Kang, the chief counsel for Demand Justice, told Bendery that if Durbin refuses to "reform the outdated blue slip tradition," he is endorsing "the worst kind of extreme Republican obstructionism."
The Senate Judiciary Committee is expected to consider 13 Biden judicial nominees during a hearing scheduled for Thursday.
Durbin said during Tuesday's hearing that he hopes Republicans and Democrats on the judiciary panel can "try to find common ground," remarks that came shortly before the GOP blocked Democrats' request to temporarily replace Feinstein on the committee as she recovers from shingles.
Sen. Lindsey Graham (R-S.C.) objected to Senate Majority Leader Chuck Schumer's (D-N.Y.) unanimous consent request to replace Feinstein with Sen. Ben Cardin (D-Md.), saying, "This is about a handful of judges that you can't get the votes for."
Rep. Ro Khanna (D-Calif.), who has urged Feinstein to resign, said in response to the GOP's obstruction that "the ball is now back in Senator Feinstein's court to provide a specific timeline of when she can cast votes on judiciary to confirm President Biden's judges."
"Every day she is not on judiciary is hurting our ability to confirm another judge who will protect women's rights and voting rights," Khanna toldNBC News. "I hope more will choose democracy over decorum and speak out about what is painfully obvious. It's time for Sen. Feinstein to step aside to have a dignified conclusion to her public service career."
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Susan Collins Helps Sink Hopes of Replacing Dianne Feinstein on Judiciary Committee
"If you want an example of how one side plays to win and the other does not, look at how Durbin refuses to get rid of blue slips—handing Republicans a unilateral veto of Biden’s judicial picks—while Republicans won't so much as let an ailing Feinstein be replaced temporarily."
Apr 18, 2023
Sen. Susan Collins of Maine said Monday that she will not support an effort to temporarily replace Sen. Dianne Feinstein on the Senate Judiciary Committee, effectively sinking Democratic hopes of breaking a tie on the panel that has helped Republicans blockade President Joe Biden's federal judge nominees.
Collins (R-Maine), a self-styled moderate who has played a decisive role in the far-right takeover of the nation's federal court system, called the push to replace Feinstein (D-Calif.) as she recovers from shingles—something the senator herself requested last week—part of a "concerted campaign to force her off the Judiciary Committee."
"I will have no part in it," Collins added.
Collins was the latest Republican senator to express opposition to temporarily replacing Feinstein, a move Democrats were expected to attempt this week via the unanimous consent process—which was always a longshot given that any single senator could sink the effort.
Now it also appears highly unlikely that Democrats will be able to get the necessary 60 yes votes for a potential Feinstein replacement, with Collins joining Sens. Tom Cotton (R-Ark.), Thom Tillis (R-N.C.), Marsha Blackburn (R-Tenn.), and others in opposition.
While Collins framed her objection to replacing Feinstein as a show of respect for the longtime senator—even though the obstruction goes against Feinstein's stated wishes—other Republicans made clear that they simply want to keep stonewalling Biden's judicial nominees.
"I will not go along with [Senate Majority Leader] Chuck Schumer's plan to replace Senator Feinstein on the Judiciary Committee and pack the court with activist judges," Blackburn, a member of the Senate Judiciary Committee, wrote in a social media post earlier Monday. "Joe Biden wants the Senate to rubber stamp his unqualified and controversial judges to radically transform America." (Blackburn had no problem voting to confirm unqualified and highly "controversial" judges nominated by former President Donald Trump.)
\u201cNEW: Republicans reject Feinstein committee swap, putting Democrats in a bind\n\nCornyn is a NO.\nTillis is a NO.\n\nBlackburn, Cotton, Fischer, Capito and Ernst are also a NO.\n\nErnst: \u201cWe're not going to help the Democrats with that.\u201d\n\nNo apparent path to 60. https://t.co/o9VzpA6QTG\u201d— Sahil Kapur (@Sahil Kapur) 1681767459
Along with Feinstein's indefinite absence from the Senate Judiciary Committee—which has left the panel deadlocked at 10-10—the Democratic leadership's continued adherence to the antiquated "blue slip" tradition of giving senators veto power over nominees for federal court seats in their home states has ground the judge confirmation process to a halt.
Earlier this month, Sen. Cindy Hyde-Smith (R-Miss.) announced she would not return a blue slip for Scott Colom, a Biden U.S. district court nominee who had bipartisan support. Under current norms upheld by Senate Judiciary Committee Chair Dick Durbin (D-Ill.), Hyde-Smith's opposition is enough to sink Colom's nomination.
"If you want an example of how one side plays to win and the other does not, look at how Durbin refuses to get rid of blue slips—handing Republicans a unilateral veto of Biden’s judicial picks—while Republicans won't so much as let an ailing Feinstein be replaced temporarily," said Brian Fallon, executive director of the advocacy group Demand Justice.
There are currently 58 vacancies on U.S. district courts and six on circuit courts, according to Demand Justice chief counsel Christopher Kang. The American Constitution Society noted earlier this month that "the Senate has made limited progress on judicial nominations in recent weeks, with only three confirmations since March 16."
"As of April 6," the group observed, "there are still 18 Article III nominees pending on the Senate floor, waiting for cloture and confirmation votes."
A dozen Biden judges are awaiting a vote from the evenly split Senate Judiciary Committee, in which a tie means a nominee does not advance.
The consequences of failing to fill vacant lifetime federal court seats could be disastrous, given the Republican Party's willingness to abandon Senate norms to ram through extreme judges whenever they get the opportunity. During Trump's four years in office, the Republican-controlled Senate confirmed more than 230 federal judges—a recent record that appears safe given the slowing pace of Biden judicial confirmations.
With the Feinstein replacement effort all but dead, the path forward for Democrats is unclear.
Feinstein is facing growing calls to resign from the Senate entirely, which would allow California's Democratic Gov. Gavin Newsom to appoint a replacement who would serve through 2024. That replacement would still have to win Senate approval to sit on the judiciary panel.
\u201cFeinstein's refusal to retire is currently wrecking Biden's entire judicial agenda. It's erasing the advantage that Senate Democrats gained in 2022. It's grinding confirmations to a halt. It's giving GOP senators even more leverage over noms. The damage here is just astounding.\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1681748074
"Whatever deal Democrats negotiate—if any—they should make no promises about keeping the 'blue slip' tradition that gives individual senators what amounts to a veto over prospective judicial nominees from their home states," columnist Jill Lawrence wrote for The Bulwark on Monday. "It's not a law. It's not in the Constitution. Biden, when he chaired the Senate Judiciary Committee, used blue slips to assure consultation but considered them advisory, not binding."
Sarah Lipton-Lubet, president of the Take Back the Court Action Fund, told Lawrence that Democrats "have a responsibility to do everything they can to rebalance the judiciary and dilute control" of Trump judges, who have worked to gut abortion rights, weaken gun regulations, and protect polluters.
"There are few things more urgent for the Senate to do than fill these open seats," said Lipton-Lubet.
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Dick Durbin Under Fire for Letting GOP Senate Minority Veto Biden Judges
The Senate GOP only has effective veto power over Biden judges "because Durbin refuses to revoke the blue-slip tradition that willingly grants Republicans the ability to obstruct," said one observer.
Apr 10, 2023
With the disastrous consequences of the far-right's takeover of the federal court system becoming clearer by the day, the Democratic chair of the Senate Judiciary Committee is facing intense criticism for preserving a tradition that is allowing Republicans to veto judges nominated by President Joe Biden.
The so-called "blue slip courtesy" is a nonbinding Senate norm that allows lawmakers to reject nominees for court seats in their home states.
While Republicans didn't hesitate to dispense with the informal rule when they were ramming through far-right judges at a torrid pace during former President Donald Trump's four years in office, Sen. Dick Durbin (D-Ill.) has chosen to adhere to the blue slip norm for district court nominees.
That decision garnered fresh anger last week when Sen. Cindy Hyde-Smith (R-Miss.) announced she would not return a blue slip for Scott Colom, a Biden nominee for the U.S. District Court for the Northern District of Mississippi. Collum had already received approval from Mississippi Sen. Roger Wicker, also a Republican.
CNNnoted Monday that "Durbin's office blasted Hyde-Smith's opposition to Colom in a statement that did not indicate whether he was rethinking the blue slip rule."
"The rule has not been respected consistently through the modern history of the Senate, and Republicans nixed the requirement for U.S. circuit court vacancies under Trump. Democrats, now in control, have refused to bring it back for appellate nominees, but Durbin has said he'd like to keep it in place for district courts," the outlet reported. "Durbin didn't waver on that position when Sen. Ron Johnson [R-Wis.] flip-flopped last year on his support of a district court nominee in his home state, state Judge William Pocan, effectively torpedoing Pocan's nomination."
Progressive advocacy groups said Monday that Durbin's refusal to ditch the blue slip tradition was made even more outrageous by a Friday ruling from Trump-appointed U.S. District Judge Matthew Kacsmaryk of Texas, who deemed the Food and Drug Administration's (FDA) approval of the abortion medication mifepristone invalid. The U.S. Justice Department is appealing the ruling.
Shortly after Kacsmaryk handed down his ruling, which parroted anti-abortion talking points, U.S. District Judge Thomas Rice of Washington State—an Obama appointee—issued a conflicting decision ordering the FDA to maintain access to the pill.
"If last week's appalling ruling from a MAGA judge attempting to ban abortion medication has taught us anything, it's that judges matter. Senate Dems must do everything in their power to confirm [Biden's] nominees, including eliminating the blue slip ASAP."
Hyde-Smith praised the Kacsmaryk ruling, calling it a "victory for pregnant mothers and their unborn children."
\u201cThis is the same Republican senator being allowed to block a Biden judicial nominee because of Sen. Durbin\u2019s blue slip policy.\u201d— Demand Justice (@Demand Justice) 1680961600
Durbin's adherence to the blue slip norm has also drawn frustration and backlash from fellow Democrats.
"If it's a blue slip problem and the Republicans aren't turning in their blue slips and they're being obstructionist, then we need to think about changing the rules," Sen. Mazie Hirono (D-Hawaii) told CNN.
In a tweet late Friday, former Rep. Mondaire Jones (D-N.Y.) faulted Durbin for "allowing the blue slip process to prevent confirmation of Democratic judges in red states" as right-wing judges attempt to further weaken abortion rights.
\u201cMeanwhile, Senator Dick Durbin allows the blue slip process to prevent confirmation of Democratic judges in red states.\u201d— Mondaire Jones (@Mondaire Jones) 1680915886
The Senate approved 96 federal judges during Biden's first two years in office, outpacing all of his recent predecessors.
But the upper chamber confirmed just 34% more Biden judges in 2022 compared to the previous year, whereas the Senate under Trump approved 177% more judicial nominees in the former president's second year in the White House than in his first.
The Senate greenlit a record 231 federal judges—not including Supreme Court justices—during Trump's four-year tenure, filling vacancies across the country with young, often unqualified right-wing judges who will have significant power over U.S. law for decades to come.
In addition to further imperiling abortion rights, Trump-appointed judges have recently issued rulings against student debt cancellation, LGBTQ+ protections, and efforts to revoke anti-immigrant policies implemented by the former president.
According to the American Constitution Society, 18 Biden judicial nominees are awaiting floor votes, 12 still must be reported out of the Senate Judiciary Committee, and six are still waiting for hearings.
The Biden administration has thus far refused to pressure Durbin to drop the blue-slip rule entirely, even after Hyde-Smith made clear that she would try to tank Colom's nomination.
Durbin has said the recent and indefinite absence of Sen. Dianne Feinstein's (D-Calif.)—a member of the Senate Judiciary Committee—has had an impact on the panel's ability to advance judges.
CNN observed that since Feinstein's office announced in early March that the senator was hospitalized with shingles, "the committee has only approved one nominee, Judge Matthew Brookman, the GOP-supported appointee for the Indiana district court seat."
But The American Prospect's David Dayen stressed Monday that the Senate GOP only has effective veto power over Biden judges "because Durbin refuses to revoke the blue-slip tradition that willingly grants Republicans the ability to obstruct."
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