When the Senate Judiciary Committee meets Thursday to vote on another slate of President Joe Biden’s judicial nominees, Democrats will be benefiting from more than their two additional years of Senate control.
Democrats – with the expansion of their majority in the midterms to a 51-49 margin – have gained new advantages in their remaking of the federal bench that they didn’t have during the first half of Biden’s administration. Among them, soon having a clear majority on the Judiciary Committee – rather than the previous even split – that will limit the ability of Senate Republicans to slow the pace of confirmations.
But the committee’s Democratic leadership is stopping short of committing to another aggressive move that would hyper-charge Biden’s reshaping of the judiciary.
Activists on the left want Chairman Dick Durbin to abolish the “blue slip,” the last major tool GOP senators have to constrain the impression Biden can make on the courts, but the Illinois Democrat has not been willing to take that step.
Just a few weeks into the new Congress, shadow boxing has already begun over the role of so-called blue slips – the sign-off district court nominees must get from their home state senators – and whether they will be used to obstruct Biden’s judicial overhaul.
“Republicans have made a mockery of the blue slip system,” Sen. Richard Blumenthal, a Connecticut Democrat on the Judiciary Committee, told CNN. “I’m counting on our leadership, the chairman to impose some discipline and order on this process.”
The first two years that Biden was in the White House, the president broke records on judicial confirmations. He did so, however, by clearing through vacancies that would be the easiest for him to fill, because they largely stemmed from states represented by Democratic senators. Now his push on judges stands to head to parts of the country where filling openings will depend on either collaborative Republicans or an abandonment of a Senate norm.
“I want to keep the blue slip,” Durbin told CNN. “I think it’s a good thing, but we need cooperation.”
The Senate’s agenda is wide open. Republicans’ takeover of the House is expected to clear the decks for the Senate to focus on more judicial confirmations with a grim outlook on much legislation passing out of Congress over the next two years.
“This is a very well positioned situation,” said former Wisconsin Sen. Russ Feingold, who served on the Senate Judiciary Committee and now leads American Constitution Society, a progressive group. “It would be an historic failure to not take maximum advantage of it by confirming as many judges as possible.”
But activists are warning that, given the way the stars have aligned for Democrats this Congress, Durbin shouldn’t wait too long to see if blue slips are used by the GOP to stonewall Biden.
“The proof is going to be in the pudding,” Feingold said. “But that proof needs to come quickly.”
Extra Senate seat lets Democrats speed up confirmations
Democrats securing a new seat in the Senate has boosted their work on judges. The extra vote means that Democrats have more breathing room on the floor. Before, the opposition of a single Democrat could tank a nominee and if any Democrat was absent from a floor vote, it could scuttle his or her approval.
But the change in Senate margins has shifted the procedural dynamics too. Under the 50-50 Senate, committees were evenly split. So, if Judiciary Republicans put a united front against a nominee, it would require a special and time-consuming parliamentary maneuver, known as a discharge petition, to get that nominee before the full chamber.
Under the regime expected to soon be adopted in the Senate, Democrats will outnumber Republicans on the committee by one vote, with Sen. Pete Welch of Vermont joining the committee.
That Democrats can now avoid discharge petitions “means more nominations, done more quickly, with less turmoil and contention,” Blumenthal said.
Democrats also faced a risk last Congress that their Republican counterparts could refuse to show up altogether to the committee. Under the rules of last term’s 50-50 Senate, a lack of quorum would debilitate the committee.
“We view the main benefit of the additional seat as being that we’re not really under the threat of the entire committee being shut down,” a committee aide, who requested anonymity to speak candidly, told CNN. The aide cautioned, however, against talk “as though it is totally easy, smooth sailing now, with the numerical majority.”
“The reality for us is that at any given markup, we still have to have everyone there and everyone on board,” the aide said.
Potential flashpoint over Republican cooperation
With 97 federal judges confirmed his first two years to serve on district courts, appeals courts and the Supreme Court, Biden will be chasing former President Donald Trump’s record of 234 judges confirmed by the end of his term.
Trump’s success was facilitated by the tactics Republicans used against the president that preceded him. Scores of vacancies open under President Barack Obama remained unfilled in part because the blue slip requirement stalled the selection and confirmation process and Trump was left with more than 100 seats to fill – 17 of them on appellate courts. Once the GOP took over the White House, Republicans then got rid of blue slips for appellate nominees, but they remain in place for district court judges.
Whether the judicial arms race will escalate further is a question that now lingers over Durbin.
Biden’s White House has focused not just on the number of his nominees Democrats can put on his bench, but the types of nominees Biden selects – with a focus on former public defenders, civil rights attorneys and other types of lawyers that have traditionally been underrepresented in favor of ex-prosecutors and corporate lawyers.
If Durbin allows Republicans to block Biden from filling trial judge nominees in their home state, it “really is going to hamper president Biden’s ability to leave a mark on the judiciary,” said Chris Kang, an alum of the Obama White House Counsel’s Office who is now chief counsel of Demand Justice, which advocates for Democrats to take a more aggressive approach to the judicial confirmation process.
Of the 38 district court vacancies that don’t currently have nominees, more than two dozen are in red or purple states where Republican senators have veto power – via the blue slip – over whom Biden chooses. A large swath of those openings are in the South, where some of the most consequential decisions on voting rights, immigration, and other contentious policies are handed down.
The Judiciary Committee aide said that calls to do away with the blue slips are “pretty premature.”
“We haven’t really had a chance to see if Senate Republicans are going to play ball in the same way that Senate Democrats did under President Trump,” the aide said.
Other Senate Democrats share Durbin’s wariness about abandoning the blue slip and Sen. Lindsey Graham, the committee’s top GOP member, has encouraged his fellow Republicans to come to the table with the White House on nominations. The South Carolina senator kicked off the committee’s first meeting of the year with the acknowledgment that “elections have consequences.”
“I am not asking anybody to capitulate but I’m asking people to collaborate,” Graham told CNN.
Durbin 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.
Texas Sen. John Cornyn said at a committee meeting last week that only in recent days had the White House expressed interest in looking at his state’s district court vacancies. The White House did not provide comment in response to CNN’s inquiry for this story.
“It’s my hope that we will, in this environment, be able to persuade colleagues, both Democrat and Republican to come forward quickly with nominees, to negotiate packages with the White House and to move forward, without having to overturn the longstanding tradition of respecting the input of in state senators for district court judges,” Democratic Sen. Chris Coons, a Judiciary Committee member from Delaware, told CNN. “But if we cannot make progress on that, that’s a question that will certainly be in front of the committee later this Congress.”