Senators currently in the majority are facing two opposing realities. First, they have an opportunity to make historic strides in diversifying the federal bench by confirming qualified judges committed to the rule of law and vindicating fundamental freedoms. Second, Senators in the minority are doing whatever they can to prevent the first and are poised to get away with it if the majority does not step up. It’s time for the Senate majority to play hard ball, and here’s how.
Stop thinking short term. The Senate majority needs to have a 20--month game plan for maximizing judicial confirmations between now and the last day of the 118th Senate. This isn’t just about Senator Feinstein’s extended absence or just about blue slips. It’s about overcoming all of the tactics being employed to obstruct judicial confirmations and undertaking the combination of steps needed to maximize confirmations of diverse, qualified judges who are committed to the rule of law.
First, confirm every one of the judicial nominees pending on the floor. With Senator Fetterman’s return, there are now sufficient votes to put these nominees on the bench. Without delay, Senator Schumer should proceed with the confirmation of each and every one of them, even if it means late nights for Senators.
Second, it should go without saying that the ideal scenario is for Senator Feinstein’s health to improve and for her to return to Washington and to her seat on the Senate Judiciary Committee. Her absence has had an undeniable impact on the Senate Judiciary’s ability to advance nominees. Between the Committee’s large mark up on February 9 and its mark up on April 20, only one nominee was voted out of Committee.
During the April 20 mark up, the Committee managed to vote seven nominees out. Senator Graham voted in support of advancing each of the seven, and Senator Feinstein was allowed to vote “aye by proxy.” If this were to continue, the impact of Senator Feinstein’s physical absence could be tempered. This may be wishful thinking, however, as only one nominee made it out of committee during the April 27 mark up.
Moreover, following the April 20th mark up, Senator Feinstein’s proxy votes have been described as “courtesy proxies” that were pre-negotiated with Republicans and allowed because her vote had no impact on the outcome. This means any nominee who cannot secure at least one Republican vote in Committee is likely to be stuck there so long as Senator Feinstein is physically absent and her seat vacant. If the Senate majority is to consistently and reliably move nominees from Committee to the floor, they need one of two things to happen: for Senator Feinstein to return to Washington or to fill her seat on Committee.
The obvious and simplest way of doing the latter is by having Senator Schumer appoint a substitute per Senator Feinstein’s request. This unfortunately is not viable because the Senate minority is itself playing hard ball and refusing to do this courtesy for a long-time colleague. Confronted with such obstruction, there are still multiple routes the majority could take to fill the Committee seat.
First, Senators could, with a simple majority vote, create a carveout to the filibuster that would enable them with a majority vote to seat a substitute on Judiciary. For Senators who are squeamish about substantive carveouts, this should be more acceptable as it is merely a procedural carveout to the filibuster to restore the majority on the Committee that Democrats gained through the election. Second, the majority could challenge the Parliamentarian’s interpretation of the Judiciary Committee’s rule that an affirmative, determinative vote cannot be done by proxy.
Third, the majority could create a carve out to the filibuster rule to allow discharge petitions with a simple majority vote – again this would be a procedural carveout. Discharge petitions enable judicial nominees to make it out of Committee and onto the floor after receiving a tie vote in Committee. In the 117th Senate, when the Senate was split 50-50, discharge petitions only required a majority vote. While discharge petitions are available in the 118th Senate, enabling them with only a majority vote was not included in the organizing resolution, which means they are currently subject to the filibuster.
I lay out all of these options to say this: the current Senate majority must be creative and think outside the box. It has several options. You better believe that if the tables were turned, the current minority would do whatever it needed to move its nominees to the floor and confirm them. For the Senate majority to sit idle in the face of this obstruction is self-defeating and enables the Senate minority to run the board.
Moving beyond Senator Feinstein and her seat on Judiciary, the third step needed for the Senate majority to play hard ball is for Senator Durbin and his colleagues on the Judiciary Committee to eliminate the blue slip tradition. We’ve been saying this for months. The blue slip tradition enables a Senator to single-handedly veto a judicial candidate nominated for a vacancy in the Senator’s home state. The Senator can block a nominee for any reason, including discriminatory reasons.
Senator Hyde-Smith’s refusal to return the blue slip for Scott Colom is a case in point. By retaining the blue slip tradition, Senator Durbin and his colleagues on Judiciary are enabling this type of obstruction of diverse, qualified candidates. With most current district court vacancies in red states, there will inevitably be more obstruction. The Senate majority has so far retained blue slips out of a desire to be respectful of tradition and to show themselves bipartisan. Well, like the tango, bipartisanship takes two, and the Senate minority isn’t interested in dancing when it comes to many of the current vacancies.
There should also be no expectation that Republicans will retain blue slips if they regain control of the Senate. They scrapped blue slips for circuit court nominees during the Trump administration, and almost certainly would readily scrap them for district court nominees if it advantaged them down the road. Senate Democrats are simply shooting themselves in the foot by retaining this tradition.
Fourth, reduce the post-cloture debate time for circuit court nominees from 30 hours to two hours, akin to that for district court nominees. The current 30-hour requirement is a waste of time, check-the-box requirement as it is almost never used to actually debate a nominee.
Fifth, enable multiple nominees to be considered simultaneously on the floor. Senators are always juggling multiple issues, pieces of legislation, etc. They can consider multiple judicial nominees simultaneously, just as they do executive nominees. The requirement that they only consider one at a time is needless, but it endures because of tradition and inertia.
Sixth, scrap the August recess. The Senate has lost significant time over the past two months due to valid medical absences. The easiest way to make up that time is for the Senate to spend August in DC. There is a precedent for this. Senator McConnell kept the Senate in Washington in 2018 – an election year no less – to confirm judges.
In an election, the most important currency is money. When it comes to confirming judges, the most important currency is time. The Senate cannot materialize more time out of thin air, but it can make much more efficient use of the time it has. In addition to scrapping August recess, the Senate majority should be scrutinizing the Senate calendar to identify every extra day or week that can be spent in DC.
Seventh, Senator Schumer should be ready to keep the Senate permanently in session. The party in control of the Senate controls the amount of time that the Senate is in session. If the Senate minority insists on obstruction, either delaying or blocking the advancement of nominees and confirmation votes, Senator Schumer and the majority should keep the Senate in session five days a week, even seven days a week, from dawn until dusk, for however long it takes to confirm every single one of President Biden’s judicial nominees.
This may seem like a lot of time and effort for judges. To that I would say two things. Confirming judges is arguably the most impactful thing the Senate can do with a divided Congress in which legislation has next to no chance of passing. And second, the past couple years have been a frightening masterclass in the sweeping impact that individual judges can have. I challenge any Senator to downplay the importance of confirming life-time judges right now.
In 2015 and 2016, a Republican Senate was able to block dozens of President Obama’s judicial nominees because it had majority control. That’s how the Texas district seat that became vacant in the summer of 2016 was held open until President Trump could fill it with Judge Kacsmaryk in 2017. Kacsmaryk has since gone on to hand down blatantly partisan decision after decision detached from law and fact. This includes his recent decision striving to overturn the Federal Drug Administration’s approval of Mifepristone, one of the two drugs most commonly used in medication abortion and that is considered safer than Tylenol and Penicillin.
Unlike 2015 and 2016, however, Republicans do not control the Senate right now, but Democrats are acting like they do. Time and time again Republicans have changed Senate traditions and rules to block vacancies and to confirm their own nominees. They’ve even stolen Supreme Court seats. As a result, we are being subjected to extreme, dangerous judicial decisions that are eroding or eliminating our fundamental freedoms and threatening the guardrails of our democracy.
The Senate, working with the White House, has a golden opportunity to counter the Right’s impact on our courts by confirming diverse, qualified judges. It’s time for the Senate majority to play hard ball, or Democrats will have only themselves to blame when we get to the end of 2024 and there are dozens of vacancies unfilled and dozens of judicial nominees left on the table.