The Congressional Black Caucus has been banging on Senate Judiciary Chairman Dick Durbin’s door for months, pleading with him to end the “Jim Crow practice” of giving Republicans veto power over President Joe Biden’s nominees—aka ”blue slips,” the courtesy in the Senate of allowing senators to approve, or reject, nominees from their states. The caucus has escalated to appealing directly to Biden to do something about it, and include them in choosing nominees in the states they represent.
They’re back at it with a new letter to Durbin, asking him to reform the blue slip procedure rather than abolish it. They’ve apparently concluded that he’s simply not going to budge on dropping blue slips, and they’re probably right. They upped the ante in the letter, informing Durbin that they will, as a bloc, oppose nominees unless Durbin makes certain reforms. To be clear, the House doesn’t get a vote on nominees, though previous practice has been for the president and Senate Judiciary Committee to consult with House members on nominees when the Senate seats in their state are held by the opposing party.
The threat is more political than practical. Pushing nominees against the vocal wishes of the caucus would be a really bad look for Biden and for the Senate. “The continued misuse of the arcane Blue Slip as a tool for procedural obstruction and the failure to meaningfully engage CBC Members who have a jurisdictionally vested interest in nominations will undermine our joint endeavor to make a dramatic mark on the judiciary,” Black Caucus Chair Steven Horsford of Nevada wrote in the Tuesday letter.
Durbin and Biden have been skipping the blue slip procedure for appeals court nominees and have achieved real success with stellar appointments of a racially, ethnically, and professionally diverse group of judges. But Durbin hasn’t chosen to drop it for district court judges, or for U.S. attorneys and U.S. marshals. The supply of vacancies in friendly states has just about dried up, and with it Biden’s opportunity to largely remake the federal judiciary.
The ongoing push from the caucus comes after the Senate confirmed six exceptional judicial appointees, all with civil rights and public defender backgrounds—and all of whom the Republicans bitterly opposed. They might be the end of the line when it comes to nominees of their background. Most of the vacancies—more than 80% of them—in the judiciary now are in states that have two Republican senators. There are 36 district court vacancies right now, and 31 of them are in states with two Republican senators. Of the current 68 vacancies in the federal judiciary, Biden has named just 28 nominees. There are another two dozen seats slated to become vacant before the end of Biden’s first term.
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Not filling those seats would be malpractice. Hosford and the caucus reminded Durbin exactly what’s at stake. ”Judges matter, and the opinion of a few can impact the lives of many,” they write [emphasis in the original]. “For example, an ideological Trump appointed district court judge in Texas used his power to invalidate the Food and Drug Administration’s 23 year old approval of a widely used abortion pill, threatening access to life saving healthcare services for millions.”
They also reiterated a history lesson they’ve previously discussed with Durbin. The blue slip “custom was created by segregationist Senator James Eastland of Mississippi to prevent school integration after Brown v. Board of Education, maintain white supremacy, and entrench Jim Crow by blocking the nomination of judges who would respect Brown as precedent and enforce desegregation orders.” For most of the Senate’s existence, blue slips weren’t a thing, much like the filibuster. It was—and is—used by opponents of civil and voting rights to undermine equal justice under the law.
The caucus also tells Durbin, as he should remember well, that Sen. Chuck Grassley and then-Senate Majority Leader Mitch McConnell “cleared the way for the Trump Administration to stack the judiciary with the Senate confirming 234 federal judges, including three Supreme Court judges, during Trump’s presidency.”
What the caucus wants isn’t even the wholesale abolition of the blue slip, except for U.S. marshal and U.S. attorney positions. They want Durbin to require just one blue slip to advance a nominee, and require senators to publicly explain why they are refusing to provide their blue slip. In addition, they are asking Durbin to work with the caucus to create a process that allows members of the caucus to be consulted on nominees from their states.
Biden only has one year left in this term to continue to remake the judiciary and undo at least some of the harm McConnell and Trump have inflicted. Biden and Durbin absolutely should be guided by the Congressional Black Caucus on this issue. Getting rid of blue slips entirely would be best, but accepting the caucus’s recommendations would certainly be better than the status quo.
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