When he took office, President Joe Biden vowed that the federal judiciary was going to be remade on his watch to include more women and people of color, more public defenders, and fewer corporate lawyers. In the first few years of his term, he’s had remarkable success in doing just that, seating a record number of federal judges and seeing Justice Ketanji Brown Jackson take a seat on the Supreme Court.
That was done by filling a lot of vacancies that were low-hanging fruit, as well as a number of appeals court seats where GOP opposition was ignored. That’s a key point. The Democratic chair of the Judiciary Committee, Sen. Dick Durbin of Illinois, decided that he’d follow the precedent set by his Republican predecessor and not apply the “blue slip” tradition to appeals court vacancies, just district courts. That decision, grounded in a timidity masked as institutional respect for the Senate, is just one among several that are grinding down the Senate’s work on nominees. Worse, it’s cementing the glide path the far right has created in the judiciary to further its causes.
The blue slip problem has been festering for a while, with Republicans not actually declaring they were going to obstruct nominees using the procedural tool, but still doing so in reality. Last year, Sen. Ron Johnson pulled a fast one by endorsing a nominee and then reversing himself, leaving that nominee hanging. Now Mississippi Republican Sen. Cindy Hyde-Smith is actively and loudly using the process in the most cynical and bigoted way to block a district court nominee, Scott Colom, a northeast Mississippi district attorney who also happens to be Black.
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Hyde-Smith is blocking Colom over two made-up charges: that he is opposed to “protecting the rights of girls and women,” and because he received “significant support ... from George Soros” in his race for district attorney in 2015. Neither of Hyde-Smith’s charges are true.
She said he was opposed to a 2021 law in Mississippi that bans transgender student athletes from competing in sports. Colom didn’t actually state a position on that bill, but he did say he was opposed to “ongoing efforts to criminalize transgender people and gender-affirming healthcare across the country,” including efforts to “criminalize parents who allow their children to receive medically recommended treatments.” As for the Soros charge, Colom’s campaign got nothing from the philanthropist. Soros donated to a PAC, Mississippi Safety & Justice, that ran ads in support of Colom’s election.
"I simply cannot support his nomination to serve on the federal bench in Mississippi for a lifetime,” Hyde-Smith said in announcing she wouldn’t return her blue slip. Her Mississippi colleague, Sen. Roger Wicker, is supporting Colom’s nomination, at least for now.
The blue slip procedure is the tradition between the White House and the Senate where they cooperate in identifying nominees. When both reach agreement on one, the home state senator for that judge submits their approval to the Judiciary Committee on a piece of paper that happens to be blue. When they don’t turn in that piece of paper, the committee chair has a choice: accept their obstruction and leave the seat open, or ignore their opposition and move ahead anyway. It’s a courtesy the chair extends to the senators, and not a formal Senate rule.
Durbin, who is letting Johnson get away with his veto over a Biden nominee, isn’t showing any signs of overriding Hyde-Smith. He’s also not talking about it personally. He did issue a statement via spokesperson Emily Hampsten.
“Chair Durbin has continually reminded his colleagues that it is imperative they engage with the White House in good faith to advance district court nominees–just as he did when former President Trump was in the White House,” said Hampsten. “He is extremely disappointed in Sen. Hyde-Smith’s lack of communication and ultimate obstruction of a highly qualified nominee. In the coming days, he’ll be assessing and will respond more fully.”
Boy, that’ll tell her.
It’s not just Republicans getting in the way of Biden’s nominees, however. Sen. Dianne Feinstein has been absent from the Senate, and the Judiciary Committee, since early March. The California Democrat was hospitalized for shingles on March 2 and released on March 7 but has remained in California since; when she plans to return to Washington is still unclear. She has missed 60 votes of the 82 taken in the Senate this session, 25 of them for judicial nominees.
The real problem, though, is on the Judiciary Committee, where her absence is impeding work. Without her present, there’s a 10-10 deadlock on the committee between Democrats and Republicans, and that means some nominees simply can’t be advanced. Durbin admitted as much in a CNN interview Monday: “I can’t consider nominees in these circumstances because a tie vote is a losing vote in committee,” Durbin said.
Asked whether that creates a longer-term problem for Democrats, including Biden, when it comes to nominees, Durbin conceded that “yes, of course it does,” adding: “We still have some nominees left on the calendar that we can work on … But we have more in the wings that we would like to process through the committee.”
You know who could do something about that? Dick Durbin. Just like he could tell the GOP to stuff their blue slips, he could demand Feinstein step down from the committee to make way for another member. No, it wouldn’t be pleasant to tell the 89-year-old senator who once chaired the committee that it’s time, and that her illness is endangering not just a big chunk of Biden’s agenda but also helping the far right to keep its stranglehold on the judiciary branch.
That includes on the Supreme Court, where Justice Clarence Thomas is thumbing his nose at any idea at all of judicial ethics, breaking even the weakest of laws requiring justices to disclose financial gifts. That’s on top of everything else he and his insurrectionist wife Ginni have been up to. This is something else Durbin could do something about via legislation that would force the Supreme Court to adopt the same code of ethics all the other federal judges have to abide by. No, it wouldn’t pass the current House, but it might prod Chief Justice John Roberts into action. Instead, Durbin has responded with a mealy-mouthed letter to Roberts “urging” him to investigate “how such conduct could take place at the Court under your watch.”
He does warn that “if the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it.” That’s after detailing how he’s been harping on Roberts about ethics concerns since 2011. So it doesn’t seem likely Roberts is going to hop right on that investigation, much less actually decide to impose a code of conduct on his colleagues.
Now more than ever the nation needs an influx of liberal, pro-voting rights, pro-abortion, and pro-civil rights judges. That’s what Biden promised. Durbin needs to be helping him deliver on that.
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