Sen. Dick Durbin, the new chair of the Senate Judiciary Committee, plans to continue a practice of not giving veto power over circuit court nominees to the minority, which was put in place by Republicans when they helmed the committee. Unfortunately, Durbin is not yet extending that to President Joe Biden's future district court nominees.
Traditional Senate practice has been for home state senators to both nominate and allow consideration of nominees. The process is named for the formal "blue slips," actually pieces of paper that are (or were) blue and submitted in support of a nominee's consideration by the committee. Republicans started playing blue slip games of refusing to provide those blue slips during the Obama administration while Democrats were in the majority. Because Democrats were still operating under the delusion that observing Senate traditions would be a thing that brought Republicans around to being serious about governing either through appreciation or shame, then-chairman Patrick Leahy decided to respect their disrespect and not move forward on nominees that didn't have Republican support.
Did Republicans return the favor? Of course not. In 2017, Sen. Chuck Grassley (and then after him Sen. Lindsey Graham) ditched blue slips on appeals court nominees, leaving them in place for lower, district court nominees. That's the practice Durbin apparently intends to follow. Republicans won't be able to veto Biden's appeals court nominees by refusing to provide blue slips, and they also won't be in a position to boycott the process by refusing to put nominees forward. If they don't play, the Biden administration can find its own nominees in their states and move forward with them.
Durbin's decision on circuit judges has been lauded by progressive court watchers. Alliance for Justice President Nan Aron said in a statement: "In their haste to appoint Trump’s disturbingly ultraconservative judicial nominees, Senate Republicans ignored their Democratic colleagues’ objections over 17 circuit court seats." She gave this example of Republican abuse of the system: "A quintessential example was Lawrence VanDyke, who Trump nominated to a Ninth Circuit seat in Nevada. He had laughably weak ties to Nevada, a record so anti-LGBTQ that the American Bar Association deemed him 'not qualified,' and both Nevada senators objected to his nomination. Senate Republicans confirmed him anyway."
"There's no reason," she said, "Senate Democrats to revert back to the old rules just to make it more difficult on themselves. Fair is fair, and Chair Durbin is absolutely making the right call." Durbin, a committee staffer said, "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." There is, however, going to be one set of rules for circuit court nominees and another for district court nominees, which could be a problem.
Durbin is operating under the assumption that Republicans will work with Biden and him on district court nominees just like Democrats did with Trump. They provided blue slips for more than 85 district court nominees out of the 174 district court appointments Trump netted. "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, hopefully not holding their breath.
Just 16% of Trump's nominees were non-white, which is one issue with Durbin's decision to not end blue slips at the district court level. Very few Republican senators are going to put forward the kinds of judges Biden has said he wanted. Back in December, soon-to-be White House Counsel Dana Remus wrote to Democratic senators about the importance of getting their nominees for vacancies and getting them fast. Remus also made one thing very clear: "With respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life."
Are those the nominees Republicans are going to work with Biden to identify? Fat chance. Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, pointed this out in a tweet: "[T]he district court bench is key," she wrote in response to Durbin. "I have emphasized the importance of district court judges for civil rights litigators, because we need the opportunity to make our record. We need a fair, competent, diverse, experienced district court bench."
Christopher Kang, chief counsel at Demand Justice, told Politico that’s an issue because it can mean unequal access to the courts and to fair hearings. "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." Durbin's decision on blue slips for district judges seems contingent on Republican behavior. He needs to give them an extremely narrow window of time to prove themselves.
