WASHINGTON — Key Democrats have opened the door to shelving a long-standing Senate tradition that Republicans can use to block certain judicial nominees, hoping to help President Joe Biden confirm more federal court judges.
The practice, known as “blue slips,” currently allows senators to unilaterally block potential federal district court judges from being considered for office in their home states. Although not a formal rule, it is a courtesy that allows them to submit a blue slip and approve a prospective judge, or withhold the slip, essentially vetoing the nomination.
Ahead of the fall midterm elections, Senate Judiciary Committee Chairman Dick Durbin, D-Illinois, who has the power to honor or ignore the blue sheet tradition, said: “I will stand my ground. We’ve made it work.»
But this month, Durbin said his position comes with a caveat: “I will not honor a blue paper that I believe discriminates on the basis of race, gender or sexual discrimination. So we’ll see how this plays out.»
The Democrats’ reversal comes just as Biden crossed the milestone of getting 100 new Senate judges, and Democrats have made clear they intend to confirm many judges this session, with or without Party approval. Republican, in his quest to remake the judiciary. Senate Majority Leader Chuck Schumer told NBC News that he intends to surpass the 234 justices that former President Donald Trump and the Republican-led Senate secured in four years.
Sen. Richard Blumenthal, D-Conn., said he is willing to strike down the rule «if we see the deliberate use of blue tickets to obstruct without a real reason related to the merits of the judges, and it happens repeatedly.»
He said Democrats will need an internal consensus to make changes.
“I can’t tell you what the magic number is, but the misuse and abuse of this process means we have to move on,” he said. «I certainly agree that this practice becomes anachronistic and antithetical if misused.»
So far, Democrats have honored the courtesy of the blue slip and confirmed 105 judges chosen by President Joe Biden. With plenty of vacancies to fill in Biden’s first two years that were not threatened by custom, and facing a real possibility of losing control of the Senate in the run-up to the 2022 election, they showed little desire to remove him. But in recent weeks, Democrats have begun to hold the GOP accountable for saving custom by becoming more cooperative with judges.
Asked to respond to Democrats opening the door to dispense with blue vouchers, Sen. Lindsey Graham, the top Republican on the committee, said: «I would shut it down.»
“I think it would be terrible for the body,” said Graham, RS.C., adding that judicial selection cooperation is “a two-way street” between the White House and Republican senators. He said he gives Biden’s team «low marks» for working with Republican senators on the nominees.
Republicans, led by Senate Minority Leader Mitch McConnell of Kentucky, eliminated blue chips for circuit court elections during the Trump presidency, but kept the practice for district courts.
Still, at a recent Judiciary Committee hearing, several Republicans cautioned against scrapping what’s left of the tradition.
“I urge you to reconsider this,” said Sen. Marsha Blackburn, a Tennessee Republican. «The blue sheet is essential to the Senate’s constitutional obligation to provide advice and consent.»
Graham said: «Please, if you can, Mr. President: stop this march to end the blue foul for district court judges.»
Durbin countered that under Trump, Democrats submitted 120 blue ballots that allowed judicial candidates to advance. “In this administration so far? 12” have been filed by the Republican Party, he said.
The 2022 midterm elections are also a factor in Democrats’ shifting tactics on blue slips. The party defied the odds in the midterms, retaining a majority in the Senate that allows them to continue confirming Biden’s handpicked justices. And the Republicans gained control of the House, leaving few options for legislative achievement.
Schumer is determined to fill all the vacancies; currently, there are nine in appellate courts and 72 in district courts. according the Administrative Office of the United States Courts. Dozens of those district vacancies are in states with at least one Republican senator, who Democrats fear will use courtesy to block any Biden nominee.
‘It depends completely on the president’
Sen. Sheldon Whitehouse, DR.I., said the blue receipt tradition would have a better chance of surviving if Republican senators were more cooperative to fill vacancies under Biden.
«It would be useful,» he said.
Carrie Severino, who runs the conservative Judicial Crisis Network, a leading player in the political fight for the courts, call Durbin to name examples of Republicans using blue ballots to sink judges based on gender or race, and «not painting their colleagues with the broad brush of bigotry.» She questioned how Durbin would determine if withholding a blue slip is discriminatory.
Meanwhile, liberal judicial advocates are ramping up the pressure on Democrats to quickly abandon the blue slip tradition and press the accelerator to confirm justices while they still have time.
Former Democratic Sen. Russ Feingold, who now heads the liberal-leaning American Constitution Society, said the custom is archaic and has been «weaponized» for «partisan reasons.»
“When the Republicans had the upper hand, they just didn’t hesitate to eliminate the blue papers for the appeals courts, which are an even higher court,” he said in an interview. «The Democrats would be foolish not to get rid of him for this Congress, to give them some chance to make up for the very aggressive tactics used by the Republicans over the past four years.»
Feingold said that in order to achieve Schumer’s stated goal of surpassing Trump’s total of 234 new justices, it is «essential» that Democrats remove the courtesy of the blue slip.
He said Durbin could also go halfway and proceed with the justices if one of the two senators from a state signs his blue receipt.
«It’s completely up to the president,» Feingold said. «It’s not a Senate rule.»