Deja vu over federal judges
The “blue slip” refers to the process whereby a senator signals their feedback to a proposed judicial candidate for a vacancy in their state by returning a blue piece of paper to the Senate Judiciary Committee before it takes up a vote on a nominee. (Peter Dazeley | Getty Images)
If it wasn’t clear already, the U.S. House speaker debacle was the nail in the coffin of any hope of bipartisan legislating over the next two years. With a divided Congress, President Joe Biden and the Senate will need to look somewhere other than to legislation to improve people’s lives and address our most pressing problems. One area they must prioritize and that can have a lasting impact on nearly every policy issue that any senator cares about: federal judges.
Over the past month, Senate Majority Leader Chuck Schumer and the White House have said all the right things about prioritizing judges. They did a decent job of doing so in President Biden’s first two years, confirming 97 federal judges and putting a premium on demographic and professional diversity. For those keeping track, that’s 12 more judges than Donald Trump had confirmed in his first two years. However, the majority of those 97 judges were confirmed to vacancies in states with two Democratic senators.
Today, there are dozens and dozens of vacancies across the federal judiciary. Federal dockets are already backlogged, often taking years for a case to get to trial. Judicial vacancies compound the problem, making access to justice too expensive and too remote for most Americans – especially for low-income people.
Many of the current vacancies are in states with two Republican senators. While the filibuster no longer applies to judicial confirmations, there is a senatorial tradition or courtesy that can still enable a single senator to obstruct the filling of district court vacancies in their state – the blue slip.
The “blue slip” refers to the process whereby a senator signals their feedback to a proposed judicial candidate for a vacancy in their state by returning a blue piece of paper to the Senate Judiciary Committee before it takes up a vote on a nominee. In theory, this symbol of “advice and consent” is meant to lend deference to senators in their home state and foster bipartisanship. Except, bipartisanship has gone the way of the dodo when it comes to judges.
In practice, the blue slip courtesy gives senators who are opposed to the White House a tool for obstruction. By refusing to turn in their blue slip on a nominee, a single senator can effectively block a district court nominee from being confirmed and hijack the corresponding vacancy.
If this sounds familiar, there is a reason. It’s hard to talk about the judicial confirmation process and not recall Sen. Mitch McConnell’s machinations to not only block President Barack Obama from filling Justice Antonin Scalia’s seat on the Supreme Court, but to slow President Obama’s lower court judicial confirmations to a crawl during his last two years in office. Such games left a plethora of vacancies for President Trump to then fill and came at enormous cost for the American public.
Because of Sen. McConnell’s tactics during the Obama and then Trump administrations, we have a Supreme Court – and a shocking number of federal court judges – who are hostile to precedent, to legal reasoning, and increasingly to fundamental rights. As a person with a uterus, I no longer have a federal constitutional right to abortion because of how Sen. McConnell and his caucus abused the judicial confirmation process.
Here we are again, in a situation where McConnell and his caucus can abuse the process to block judicial nominees from being confirmed. And as of right now, Democratic senators are going to let them do it!
The blue slip is not a rule. It’s a courtesy, a norm. This means that Sen. Schumer and the Senate majority do not need to even vote to remove this tool of obstruction. They simply need to stop deferring to it, as McConnell did for circuit court nominees during the Trump administration. Democratic senators should take McConnell’s advice from 2017 and view the blue slip “as simply [a] notification of how you’re going to vote, not as an opportunity to blackball.”
With New Hampshire’s congressional caucus, I am confident that blue slips will not obstruct the filling of our federal district court vacancy. However, if blue slips are used to obstruct judicial confirmations in other states, that could well affect me and all Granite Staters. We are seeing across the country, federal judges nominated by President Trump defying the rule of law and issuing sweeping decisions that have national consequences. These judges are feeding cases up to a U.S. Supreme Court that they know will rule a certain way. A federal judge in Alabama or Texas can still impact us in New Hampshire.
This is why I am speaking out. The last few years have proven the enormous and detrimental impact that judges can have on our fundamental rights and on our laws. President Biden and the Senate should prioritize filling as many federal court vacancies with diverse, qualified judges as they possibly can. To do this, they need to end the deference to blue slips.
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