The White House is losing patience with Republican obstruction and game-playing on judicial nominations. Republicans have continued their obstruction, and even escalated it in retaliation for the limited filibuster reform Senate Majority Leader Harry Reid implemented last year. That's frustrating the White House, but they're still deferring to Sen. Patrick Leahy's judgement as Judiciary Committee chair on what he's going to do about it.
Republican senators, White House aides argue, have developed what amounts to a silent filibuster, using the “blue slip” tradition that gives home state senators signoff power for in-state nominees. Given the number and length of delays, they say trying to collaborate on nominations has become an unbearable burden, the blue slip an outdated courtesy—there are 53 pending judicial nominees, and only six of the 37 vacancies without a pending nominee are in states with two Democratic senators.Then there's the case of Texas, with nine vacancies, seven of which have reached the status of "judicial emergency," a designation made by the Administrative Office of the United States Courts because of the length of the vacancies. Sens. Ted Cruz and John Cornyn have refused to cooperate in identifying possible nominees. Cruz all but admits to the hostage-taking, saying they would be happy to play along if only "they got more amenable nominees." And other Republicans, of course, are outraged by the very possibility of blue slip reform.
Meanwhile, the White House points to examples like GOP Sens. Marco Rubio of Florida and Richard Burr of North Carolina, who refused to return blue slips on nominees they recommended, or people like former Missouri Supreme Court Justice Ronnie White, whose nomination to the federal bench by Obama is still waiting on a blue slip four months after Sen. Roy Blunt (R-Mo.) said he would return it.
“It’s a manufactured crisis,” said Sen. Lamar Alexander (R-Tenn.). “There’s no basis for this kind of contempt for the traditions of the United States Senate, and it’s disgusting to me that it’s even being talked about.”The horror! Never mind, of course, that Republican Sen. Orrin Hatch ignored the traditions of the United States Senate when he was chair of the Judiciary Committee and ignored the blue slip courtesy on a number of Bush's nominees. Sen. Lindsey Graham also promises “anything I can think of to make life difficult" if Leahy decides to use the Hatch precedent on blue slips. Thus far, Leahy seems to be taking the threats seriously, continuing to assert that there's not a current problem with the blue slip process: "As long as the blue slip process is not being abused by home-state senators, then I will see no reason for a change."
It's hard to imagine what blue slip abuse would look like, if it wasn't what we're seeing now. There are a number of reforms Leahy could embrace short of just throwing out blue slips, such as the Fix the Senate Now coalition (Daily Kos is a member) is recommending: having hearings on nominations where there is GOP opposition, requiring those senators to publicly state their objections; and resuming the practice of posting the status of blue slips for each judge nominated on a transparent, easily accessible website; and, finally, choosing to move forward with a nomination even if there is a negative blue slip returned giving home state senators a consultation role, but not veto power. Something has to break if nominations are going to move forward, if the limited filibuster reform Senate Democrats approved is going to make a difference.