The U.S. Senate is a fairly sleepy place right now as House Republicans continue to prefer pointless, performative, Fox-News pleasing antics to actually addressing the many serious issues that confront this nation. There simply aren’t that many things for a senator to do while patiently waiting for another Democratic House to come along and send up some legislation that actually has a chance of passage. Something that doesn’t involve denying Americans their tax refunds for as long as possible, preventing corporations from considering how their actions might damage the environment, denouncing the supposed “horrors” of socialism, meddling in doctors’ ability to practice medicine, or forcing hospital patients to be exposed to COVID-19.
So our newly elected majority of Democratic senators—who would doubtlessly prefer passing laws geared toward improving the lives of Americans—are resigned to simply fulfilling one of the few specifically enumerated constitutional duties assigned to them: confirming President Joe Biden’s judicial appointees to the federal bench. Having achieved a clear majority—as opposed to the 50-50 divided Senate (that required the intervention of Vice President Kamala Harris in the case of a tied vote)—has streamlined that process mightily, permitting faster votes unencumbered by the frivolous protestations and delaying tactics of the Republican minority.
This past week marked a milestone of sorts as the Democratic-controlled Senate confirmed Biden’s 118th judicial nomination, Gordon Gallagher, to the federal bench for the District of Colorado, making that more than half the number confirmed under Donald Trump. While there is obviously a long way to go over the next two years, there are several reasons to celebrate Biden’s achievement up to this point.
RELATED STORY: Enough warnings on blue slips, Sen. Durbin. It’s time to act on it
In his single term in office, Donald Trump appointed a total of 234 Article III judges to the federal judiciary, including his three loathsome additions to the U.S. Supreme Court. Almost to a man (and they were mostly white men), these judges were plucked by the right-wing Federalist Society from its carefully tended spawning tanks, specifically bred to decimate abortion rights, roll back protective laws intended to prevent discrimination, and, above all, cater to corporate interests for the duration of their lifetime appointments. Trump himself served as nothing more than a rubber stamp for these specimens, all carefully vetted and pre-selected to do the right’s bidding. Many—if not most—of those judges were chosen for their zealous ideology over actual competence, with several having little or no qualifications for the job at all.
We have seen the outcome of this Republican experiment in judicial engineering in the radically activist actions of the now-unassailable Supreme Court majority as it continues to heedlessly eviscerate and nullify prior “settled” law in order to refashion the country in conformation with conservative, race-based, and theocratic ideology. But it’s important to recognize that this intentional right-wing poisoning has extended throughout the entire federal judiciary.
We’ve seen it in the behavior of individual, Trump-appointed district judges, such as Florida’s Aileen Cannon and Texas’ Matthew Kacsmaryk, and the radically conservative, Trump-seeded “rogue” Fifth Circuit Court of Appeals. All of whom have provided welcome forums for Republicans eager to inflict harm on those segments of society they either despise or wish to exploit, and all of whom have demonstrated their eager willingness to overturn established law to achieve that goal. It is beyond ironic (but sadly predictable) that House Republicans have loudly touted their opposition to a “weaponized” federal government, while ignoring the grotesque weaponization of the judiciary against the American people that Trump successfully fostered.
When a judiciary becomes simply the enforcing arm of a political party, it loses the confidence and faith of the American people, and the rule of law becomes a mere corrupt instrument of political ideology rather than a universal, guiding principle, worthy of the peoples’ respect. To his credit, Biden clearly recognizes this and with the efforts of a Democratic Senate majority he has sought to counter—if not fully reverse—the pollution of the judiciary perpetrated by Donald Trump and the Federalist society that informed all of his nominations. Biden has made a concerted effort to not only nominate highly qualified judges but also judges who fairly represent the country’s demographics and social classes. In fact, given the lopsided reliance by Trump on appointing white, male judges, Biden has quite deliberately appointed more female, Black, Asian and Latino judges to the federal bench than any president in history. And he has done this at a pace that exceeds that of his three predecessors: Trump, Obama, and Bush.
If you review the states in which Biden has appointed federal district court judges, you will notice that they have been largely confined to “blue” states with Democratic senators. That is the consequence of the Senate’s fealty (thus far) to the “blue slip” process in which a senator from a “home” state (where the judge is being nominated to preside) can effectively stall or prevent the nomination of a particular judge by failing to provide consent or a “blue slip” allowing the nomination to proceed. This antiquated “courtesy” is ostensibly based on that senator’s presumed “knowledge” of his or her state, but it is a prerogative that has been unusually abused by Republicans thus far during the Biden administration as a justification for opposing virtually any red-state judicial nominee Biden submits. As long as Republicans continue to abuse this prerogative, they can stall or prevent a vast number of Biden’s nominations in “red” states who are currently awaiting confirmation.
As explained by Tierney Sneed, reporting for CNN:
[Illinois Sen. Durbin, chair of the Judiciary Committee] has touted the more than 100 blue slips Democrats turned over during the Trump administration, resulting in the confirmation of 84 district court judges in blue or purple states. In the first two years of Biden's presidency, Republicans submitted just 12 blue slips for district court nominees, according to Durbin. Some Republicans have pointed the finger at the White House, however and how it prioritized blue state openings.
Durbin and other Democratic senators’ reticence to end the “blue slip” process may be predicated on the assumption that Republicans know that Democrats, with their majority, can effectively end it at any time and thus it serves as a motivation for Republicans to compromise on nominees from their home states. Republicans counter with the implication that if Democrats dare to end the blue slip process, it would come back to haunt them when and if another Republican administration is elected. However, that threat seems hollow given the history in which Democrats had already demonstrated their good faith by acceding to so many of Trump’s nominees. So there appears to be no good reason for Durbin to retain this “courtesy,” at least if Republicans continue to use it—as they are now doing—solely to obstruct Biden’s nominations of district Judges to Republican-dominated states. (The blue slip process no longer applies to nominees for the higher Circuit Courts of Appeal, done away with by a Republican Senate majority during the tenure of Donald Trump.)
In the end, however, the most compelling argument for ending the blue slip process is the current, precarious state of the judicial branch itself and its intended role in the American constitutional order. By blocking judicial appointments by this president in red states, Republicans are obviously, in very real effect, dividing the nation even further than its unfortunate political polarization has achieved. But more to the point, Republican-appointed judges, from the Supreme Court on down, have demonstrated during the past two years that they are unwilling to abide by legal precedent if it conflicts with their ideology. That conscious decision to elevate their political preferences over basic judicial fairness has resulted—with good reason—in their standing plummeting in the eyes of the general public, not to mention the real, tangible harm caused by their weaponization of the supposedly “independent” judiciary. If the American public as a whole no longer has faith in its courts to fairly uphold the law, this country can hardly continue to call itself a representative “democracy.”
Democrats didn’t create this state of affairs, but it is now well within the power of the Democratic Senate to correct it before our federal judiciary degenerates any further than it already has.
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