There’s a blot on President Joe Biden’s otherwise stellar record on appointments to the federal judiciary, and it’s one that’s pretty easy for a Democratic majority in the Senate to fix. Southern Republicans have been refusing to cooperate in nominating judges in the Southern states, and so far, Judiciary Committee Chair Dick Durbin (D-IL) and the rest of the committee Democrats are letting that happen.
That means Biden’s effort to dilute the stain of Trump judges, particularly in the key southern districts where so many right-wing legal fights get a foothold, is severely hampered. It’s an old problem that Republicans have weaponized against Democratic presidents and progressive court watchers have been railing about for years: blue slips.
That’s partly why there’s another perennial problem with the White House—making those nominations and trying to fill all the vacancies. With the Democrats officially the majority—not having to equally share committees with Republicans—the nominating and confirming process should get a lot better.
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The Senate will have plenty of time to process judges; the House isn’t going to pass anything worthwhile legislatively, and anything the Democratic Senate gets done won’t get to the floor over there, so they might as well spend all their time on judges (and the executive nominees still waiting for their votes). There’s plenty of vacancies to keep them busy at it, too. As of January 11, there are 11 seats open on the Courts of Appeals, six of them with nominees. But there are 72 district court vacancies, and just 17 nominations made and pending.
District courts are “the gateway to access to justice,” Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund, told CNN. “That is where the entrenchment of hyper-conservatism is real and difficult to uproot,” Nelson said.
More than a dozen of the vacancies are in the district courts in Alabama, Florida, Louisiana, and Texas, but other states with two Republican senators—Idaho, Oklahoma, and Utah—also have them. It’s a bigger problem in the southern states because of their larger populations, number of vacancies, and larger workloads—a result of sheer population and lack of judges to hear cases. As important, this is where critical civil rights, voting rights, and culture war kinds of cases are going to happen. It’s where far right-wing interest groups shop for judges to advance their radical hobby horses—like banning abortion and voter suppression—to set up cases to go to the Trump-packed Supreme Court.
The White House is well aware of the problem, but is still pushing the bipartisan line. “All of these seats are deeply important to us. We care about all of these vacancies,” Paige Herwig, senior counsel to the President, told CNN. “It’s not a secret that a large number of vacancies are in states with two Republican senators. But we are always here in good faith. We are here to work with home-state senators.”
Which would be great, if the home state senators were working with them. That’s the “blue slip” problem, named for the literal blue piece of paper senators turn in to signal their support of a nominee from their home state. Or refuse to turn in. Honoring blue slips, and proceeding with nominations only when they’re submitted, is a courtesy, not a rule. The committee under Durbin has been following the precedent of Sen. Chuck Grassley (R-IA) before him, honoring them for district court nominees but not requiring them for appeals court vacancies.
It’s time to stop with all that. The White House needs to step up the pace on nominations, and the Senate needs to do the same on getting them to floor votes. All of them, with or without Republican agreement. There’s far too much at stake for the whole country to continue to invite GOP obstruction.