President Joe Biden has appointed—and, as of of Jan. 31, the Senate has confirmed—174 federal judges to fill the country’s district courts and circuit courts of appeal, according to Ballotpedia. There are still about 60 current vacancies. That’s not a bad record; Donald Trump ended up with 234 appointments during the abominable four years he occupied the Oval Office.
Now the bad news: The vast majority of those confirmed judges hail from states with two Democratic senators, so their nominations didn’t fall victim to the Senate ”blue slip” tradition that dictates the process. A blue slip indicates consent to the nomination by the nominee’s home state’s senators. In recent practice, it’s led to Republican senators blocking many of Biden’s judicial appointments in red states, regardless of the nominee’s qualifications. Under current Senate custom—but not actual Senate rules—without that blue slip, the nominees cannot be considered or voted on by the Judiciary Committee, resulting in their nominations, and any subsequent vote by the full Senate, being stalled indefinitely.
Under the current Senate calendar, the number of Biden’s nominees likely to be approved under this regimen—barring retirements or other judicial openings—stands at approximately 189. After that, a few judges will likely still make their way to a vote, but only if Democrats and Republicans can agree on a path forward. That typically requires that Republicans provide the coveted blue slip, usually in exchange for a more conservative nominee. It is realistically quite limited, given Republicans’ track record during the last three years, and the intense emphasis they place on appointing only like-minded judges. So unless the blue slip tradition is abrogated, Biden may see very few judges confirmed by the Senate beyond those 189 or so “blue state” nominees.
And assuming he wins a second term, should Republicans gain control of the Senate in 2024 or thereafter, Biden’s ability to get his chosen judges confirmed will almost completely evaporate.
RELATED STORY: Enough warnings on blue slips, Sen. Durbin. It’s time to act on it
The Congressional Research Service is quite clear that the blue slip process is and has been a Senate tradition wholly outside the existing rules for judicial nominations:
Since the use of blue slips is not codified or included in the committee’s rules, the chairman of the committee has the discretion to determine the extent to which a home state Senator’s negative or withheld blue slip stops a President’s judicial nomination from receiving consideration by the committee and, consequently, whether it reaches the Senate floor.
In other words, the presiding chair of the Judiciary Committee can decide whether or not a blue slip is being withheld in bad faith and can act accordingly to advance a nomination for the committee’s consideration. The current chair is Illinois Democrat Dick Durbin, who continues to stand by the tradition.
As Courthouse News reported in January:
Pointing to Democrats’ work to uphold the practice under the Trump administration and current cooperation on court nominees, Durbin said in an opening statement that “the Senate’s blue slip tradition can work as intended when we have bipartisan cooperation.”
The Illinois Democrat thanked his Republican colleagues and President Biden for working “in good faith” on the latest slate of nominees — which included picks for court vacancies in Nebraska, Texas, Utah and Wyoming — and urged other GOP lawmakers to follow suit.
In our wholly polarized political environment, the existence of obvious bad faith by members of the minority party to justify discarding the blue slip tradition has now been supplanted by a more implicit threat. Namely, that if the tradition is dispensed with by one party, the other party will also abandon it whenever they resume control of the Senate. This underlying fear has kept the blue slip tradition alive, at least for district court nominations—although Republicans already unilaterally got rid of the blue slip for the far more consequential circuit court nominations when they last held power in the Senate.
But the ideological polarization of the judiciary as evidenced during the last three years has also illustrated the complete bankruptcy of the blue slip process as applied to district court nominees. Put simply, it no longer fulfills the obligations and mission of an independent judiciary, and instead results in the continued polarization of the nation along ideological lines.
As Caleb Hayes-Deates, a member of the American Constitution Society, explained in Bloomberg Law:
[A]buse of the blue slip process also threatens to increase homogeneity within states while also heightening regional divides. If senators permit only presidents from their party to appoint judges, then ideological diversity will weaken over time.
Such diversity improves decision-making. As Supreme Court Justice Benjamin Cardozo once said, “out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements.”
If the blue-slip process produces only like-minded judges in a state, then the process Cardozo described cannot occur. And differences between states will produce divergent results for each region, potentially threatening the uniform application of federal law.
That outcome—of different judicial philosophies shaping different areas of the country—is more than simply another blue state versus red state problem. It’s a national one. Barring, without legitimate reason, the appointments of one executive to satisfy the ideological goals of one state’s senators ultimately results in “conservative” justice being dispensed in one area and “liberal” justice dispensed in another.
RELATED STORY: Keeping the Jim Crow-era blue slip process for judges is hurting the judiciary
This, of course, is already occurring. The clearest illustration is the blatant judge-shopping in states like Texas, where conservative groups deliberately seek out conservative federal judges—such as district Judge Matthew Kacsmaryk of the Northern District of Texas—to fast-track their agenda to a receptive Fifth Circuit Court of Appeals. The practical effect of this judicial polarization allows an electoral minority to impose its radical and reactionary views on the American public through a conservative conduit, in effect creating a judicial rubber stamp for right-wing policies Republicans are otherwise unable to achieve through legislative efforts. Retaining the blue slip simply exacerbates this polarization of the judiciary and, by extension, the entire country, while simultaneously straining judicial resources by preventing good judges from filling needed vacancies.
That is the high-minded, objective argument for getting rid of the blue slip. The real-world argument is even more persuasive. Because, as Caroline Frederickson of the Brennan Center for Justice pointed out in an interview with Courthouse News, Republicans have abused the tradition to the point where its original intent—deference to a senator’s home state constituency—is now moot.
She pointed to the GOP’s effort to forestall more than a dozen nominees under the Obama administration and said the trend was continuing under President Biden.
“Democrats have used the blue slip as well to try and have some influence on who the nominees were, but there’s been nothing like what has gone on in the past two Democratic administrations,” Fredrickson said. “When the Republicans are in control of the committee and they have a Republican president, they really weaken the blue slip requirements so that Democrats can be steamrolled.”
Under [Iowa Sen. Chuck] Grassley or former Utah Senator Orrin Hatch, the panel’s chairman from 2003 to 2005, the standards for blue-slipping were different than under Democratic leadership, Fredrickson argued, which “seem to be the most upright and most stringent in their obedience to the concept.”
Frederickson has also noted that Grassley, when considering former President Barack Obama’s judicial district court nominees, required two blue slips—then modified that requirement to one when considering Trump’s nominees.
It’s clear that Republicans exploit the blue slip requirement as an ideological weapon. Moreover, their willingness to abuse such so-called collegial traditions should be undeniable to senators like Durbin when the GOP refused to let Obama’s 2016 nomination of Merrick Garland to go forward after the death of Justice Antonin Scalia, on the specious excuse that such a nomination was inappropriate in an election year. Their abrupt about-face in advancing Amy Coney Barrett to the Supreme Court under identical conditions in 2020 should have given Durbin everything he needs to know.
That he apparently hasn’t yet learned the lesson, Frederickson suggests, is evidence of “either naïve or willful blindness” on his part. That may or may not true. We’ll know for sure in a few weeks, when Biden’s blue state nominations begin to peter out, and Durbin is forced to choose between retaining an obsolete tradition or publicly acknowledging the reality of what the Republican Party has become.
