President Joe Biden renominated 42 federal judicial candidates in January, nominations that hadn’t made it through the confirmation process in the previous sessions. He left three of those 2021-22 nominees off the list. One of those three is William Pocan, brother of Democratic Rep. Mark Pocan of Wisconsin, and his omission highlights a very big—and entirely fixable—problem between Biden, Senate Democrats, and Republicans; the decision to allow Republicans to veto the president’s nominees without even having to vote on them.
Here’s a window into the real-world consequences of that courtesy. The 5th Circuit Court of Appeals in Texas just ruled that law enforcement cannot temporarily remove firearms from a person subject to a domestic violence-related restraining order. They reached that decision because the founders would have rejected domestic violence as a concern. The defendant in this case was under a protective order for assaulting his girlfriend, and “over the next year, he was involved in five separate shootings, including a road rage incident and at a Whataburger after his friend’s card was declined.” He gets to keep his guns.
That case will be appealed to the Supreme Court and it’s pretty clear what the Roberts majority is going to do with it. Even more people will be killed by their abusers, sanctioned by United States courts.
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Here’s the thing with the 5th Circuit and the district courts in it: that’s the venue were all the extremists go court shopping to get their radical and dangerous cases into the Supreme Court pipeline. Trump was able to pack that court with six judges in part because of vacancies the Obama administration abandoned because of GOP obstruction.
The same GOP obstruction that has apparently sunk Pocan’s nomination. Pocan had been submitted to Biden in the fall of 2021 by Wisconsin’s senators, Tammy Baldwin (D) and Ron Johnson (R). They wrote in their submission letter that Pocan, along with others included, “were among those selected by a bipartisan commission that we established to screen applicants,” and that they were “pleased to recommend them to you.” But by February 2022, Johnson had reneged, refusing to provide a “blue slip”—the blue piece of paper that signifies a senator’s support for a homestate nominee—to Judiciary Chairman Dick Durbin (D-IL). A tradition Durbin seems happy to continue, even in the face of this kind of bullshit from Republicans.
Johnson decided to play political games and the White House and Durbin aren’t willing to challenge him. Blue slips are not a rule, they are a courtesy extended to senators, one that has come and gone with political control over the Senate. During President Barack Obama’s tenure, when Sen. Patrick Leahy was in charge of the committee and honored the tradition, Republicans boycotted the process and 100s of seats were left vacant for Trump to fill. Durbin has chosen to honor the tradition for district court nominees, but not for appeals courts.
As of now, there are nearly 100 district court vacancies, and 42 of them are in states with at least one Republican senator. There are more than a dozen of them in the district courts in Alabama, Florida, Louisiana, and Texas, but other states with two Republicans who are boycotting the process are also on the list. Durbin’s response?
“I want to keep the blue slip.” That’s what he told CNN. “I think it’s a good thing, but we need cooperation.” Yes, that’s going to be a compelling argument for Republican senators. Cooperation. They’ve sure demonstrated their capacity to do that over the past few decades.
It’s not flying with all members of the Judiciary Committee. “Republicans have made a mockery of the blue slip system,” Sen. Richard Blumenthal (D-CT) told CNN. “I’m counting on our leadership, the chairman to impose some discipline and order on this process.”
No Democrat who wants to see some sanity and balance restored to the courts should just count on leadership to deal with this. After eight years of obstruction of Obama nominees, continuing in the Biden administration, Durbin still apparently thinks blue slips are necessary. That even the Trump rampage on the courts doesn’t merit Democrats’ intervention to fix the court.
No, counting on Durbin—and Biden for that matter—to see the light and take this fight to Republicans isn’t enough. Blumenthal and any of his colleagues that agree need to start raising some serious hell on the committee.
