The Senate Judiciary Committee had a blockbuster Thursday, with a couple dozen nominees on the slate. This kicks off what should be a blockbuster session of getting President Joe Biden’s nominees to the floor, because with the Democrats’ real majority Republicans can’t force extra votes to get it done.
There is still a problem, however, one that Chairman Dick Durbin called out in a committee hearing Wednesday: blue slips. Those are the literal pieces of paper that home-state senators hand in to signal that they approve of a nominee. This is a tradition in the committee, not a requirement, but Durbin has maintained it when it comes to district judges. He’s following the tradition of his immediate Republican predecessor on that—requiring them for district court judges, but not appeals court position.
He’s being too nice about it. “I’d also like to thank Senator [Todd] Young and Senator [Mike] Braun for continuing to work in good faith to fill this federal vacancy in their home state,” he noted, for allowing a nominee to go through. “They have shown, once again, the process can work on a bipartisan basis and can result in outstanding nominees. Now we need more,” he continued. “We ask [Republicans] to engage with the White House in good faith and try to swiftly identify and advance highly qualified nominees for the federal bench.”
He pointed out that so far Republicans have returned 12 blue slips on district nominees this Congress, as opposed to Democrats who had agreed to 130 of Trump’s district court nominees. Which maybe isn’t the great point he thinks? It kind of makes it appear that the Democrats got played and continued to be played. One reason that Republicans were willing to retain the blue slip procedure on district judges is precisely because Democrats would act like responsible adults and cooperate. That’s not a courtesy Republicans feel any need to extend.
Sen. Lindsey Graham, interestingly, backed Durbin up. “Elections have consequences. Let’s work together and see if we can get some nominations moving in the spirit of what we did in the last Congress,” he said. Which could be so much lip service, because Graham does like to pretend every now and then that he has principles. The reality is the GOP will continue to come up with reasons for not doing so. One regular one from Sen. John Cornyn is, in essence, that the White House hasn’t been forthcoming enough to them in asking for their help.
“The number one reason that the pace of confirmations will slow down is Republican blue slips,” Chris Kang, chief counsel of Demand Justice, remarked. “One of the challenges in the Obama administration was that Republican senators would obstruct by delay. And at some point the clock will run out on even this two-year Congress.” They can’t delay on the committee now, so they’re going to come up with myriad other ways to do so. Including with blue slip boycotts.
And yet, a Democratic Judiciary committee aid aide told Politico that any talk of getting rid of the blue slips is “premature.” Keep in mind those figures Durbin cited: 12 blue slips from Republicans in two years on district nominees. There are currently 72 district court vacancies, with 35 nominations pending.
That’s a lot of vacancies (there are 11 in the appeals courts, as well). The Judiciary Committee and blue slips is a big issue, one that has to be dealt with. But it is also going to take a concerted effort by the White House to identify nominees efficiently and quickly to fill those slots.
On another, more fun note regarding the Judiciary Committee and GOP hijinks, there’s a new candidate for the Senate’s most-hated Republican: Missouri’s Sen. Eric Schmitt. He sauntered into the place and told his colleagues that he wanted a seat on this committee. He even called two of them—Sens. Thom Tillis and Marsha Blackburn—and asked them to step aside for him.
Problem number one with that: That’s not how it works. There’s a committee that considers new senators’ wishes on committee assignments. Problem number two: There is a standing rule in the Senate Republican Conference that prevents both senators from a state serving on the same committee, and Sen. Josh Hawley got there first. Problem number three: The committee is down a Republican seat anyway because there isn’t an equal split between the parties any more. The GOP conference dodged a fight over who had to lose a seat when Sen. Ben Sasse resigned from the Senate to go be president at the University of Florida and left the committee. Problem number four: It is pretty much unheard of gall for a freshman.
So that’s fun! For her part, Blackburn was not amused. “I’m the only Republican woman on the Senate Judiciary Committee and I don’t intend to come off the committee,” she said. “He needs to understand that these are decisions for the leader, for the committee on committees.”
The committee on committees told Schmitt “no” on Wednesday, so now Schmitt has to come up with his next demands. In the meantime, the formal organization of all the committees is on hold—it can’t move forward until the Republicans work their shit out. That’s going to be put off now until next week.