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This obscure Senate tradition may decide whether Biden beats Trump's record on judges

Democrats have opened the door slightly to curtailing the "blue slip" courtesy, warning Republicans not to abuse it to block district judges who oversee their home states.
President Joe Biden speaks in Lanham, Md., on Feb. 15, 2023.
President Joe Biden, pictured Feb. 15, recently crossed the milestone of getting 100 new judges through the Senate. Al Drago / Bloomberg via Getty Images file

WASHINGTON — Key Democrats have cracked the door open to setting aside a long-standing Senate tradition that Republicans can use to block certain judicial nominees, hoping to help President Joe Biden confirm more judges to the federal courts.

The practice, known as “blue slips,” currently enables senators to unilaterally prevent prospective federal district court judges from being considered for positions in their home states. Though not a formal rule, it’s a courtesy that allows them to submit a blue slip and sign off on a prospective judge, or withhold the slip, essentially vetoing the nomination.

Before the fall midterm election, Senate Judiciary Committee Chair Dick Durbin, D-Ill., who has the power to honor or ignore the blue slip tradition, said: “I’m sticking with it. We’ve made it work.”

But this month, Durbin said his position comes with a caveat: “I won’t honor a blue slip that I believe discriminates because of race, gender, or sexual discrimination. So we’ll see how this develops.”

The shifting posture for Democrats comes just as Biden crossed the milestone of getting 100 new judges through the Senate, with Democrats making clear they intend to confirm many judges this session, with or without GOP approval, in their quest to remake the judiciary. Senate Majority Leader Chuck Schumer told NBC News he intends to top the 234 judges that former President Donald Trump and the Republican-led Senate secured in four years.

Sen. Richard Blumenthal, D-Conn., said he’s open to nixing the rule “if we’re seeing the purposeful use of blue slips to obstruct without real reason related to merits of judges, and it happens repeatedly.”

He said Democrats will need 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 forward,” he said. “I’m certainly of a mind that this practice becomes anachronistic and antithetical if it is misused.”

So far, Democrats have honored the blue slip courtesy and confirmed 105 judges picked by President Joe Biden. With plenty of vacancies to fill in Biden’s first two years that weren’t threatened by the custom, and facing a real chance of losing Senate control in the run-up to the 2022 election, they showed little desire to eliminate it. But in recent weeks, Democrats have begun putting the onus on the GOP to save the custom by becoming more cooperative on judges.

Asked to respond to Democrats opening the door to dispensing with blue slips, Sen. Lindsey Graham, the top Republican on the committee, said: “I would shut it.”

“I think it’d be terrible for the body,” Graham, R-S.C., said, adding that cooperation on judicial selection is “a two-way street” between the White House and Republican senators. He said he gives Biden’s team “low grades” on working with GOP senators on nominees.

Image: Senate Majority Whip Dick Durbin, D-Il., walks to a closed-door, classified briefing for Senators at U.S. Capitol on Feb. 14, 2023.
Senate Judiciary Committee Chair Dick Durbin, D-Ill., said he is "sticking with" the blue slip tradition. Anna Moneymaker / Getty Images

Republicans, led by Senate Minority Leader Mitch McConnell of Kentucky, eliminated blue slips for circuit court picks during Trump's presidency but kept the practice for district courts.

Still, at a recent Judiciary Committee hearing, multiple Republicans cautioned against eliminating what’s left of the tradition.

“I would urge you to reconsider this,” said Sen. Marsha Blackburn, R-Tenn. “The blue slip is essential to the Senate’s constitutional obligation to provide advice and consent.”

Graham said: “Please, if you can, Mr. Chairman: Stop this march toward ending the blue slip for district court judges.”

Durbin replied that under Trump, Democrats submitted 120 blue slips allowing judicial nominees to move forward. "In this administration so far? 12” have been submitted by the GOP, he said.

The 2022 midterm elections are also a factor in Democrats' shifting tactics on blue slips. The party defied the odds in the midterm elections, preserving the Senate majority that allows them to keep confirming Biden-picked judges. And Republicans won control of the House, leaving few options for legislative achievements.

Schumer is determined to fill every vacancy — currently, there are nine on appeals courts and 72 on district courts, according to the Administrative Office of the U.S. Courts. Dozens of those district vacancies are in states with at least one GOP senator, who Democrats fear will use the courtesy to block any Biden nominee.

‘It’s completely up to the chairman’

Sen. Sheldon Whitehouse, D-R.I., said the blue slip tradition would stand a better chance of survival if Republican senators were more cooperative in filling vacancies under Biden.

“It would be helpful,” he said.

Carrie Severino, who runs the conservative Judicial Crisis Network, a prominent player in the political fight over the courts, called on Durbin to name examples of Republicans using blue slips to sink judges based on gender or race, and “not paint his colleagues with the broad brush of bigotry.” She questioned how Durbin would determine whether withholding a blue slip is discriminatory.

Meanwhile, liberal judicial advocates are dialing up the pressure on Democrats to quickly ditch the blue slip tradition and hit the gas on confirming judges while they still have time.

Former Democratic Sen. Russ Feingold, who now leads the liberal-leaning American Constitution Society, said the custom is archaic and has been “weaponized” for “partisan reasons.”

“When Republicans had the advantage, they just didn’t hesitate to eliminate blue slips for the courts of appeals, which are an even higher court,” he said in an interview. “The Democrats would be chumps to not get rid of it for this Congress, in order to allow them some opportunity to make up for the very aggressive tactics used by Republicans over the prior four years.”

Feingold said that in order to achieve Schumer’s stated goal of topping Trump’s total of 234 new judges, it’s “essential” for Democrats to eliminate the blue slip courtesy.

He said Durbin could also take a half-measure and proceed with judges if one of a state's two senators signs off with their blue slip.

“It’s completely up to the chairman,” Feingold said. “It’s not a Senate rule.”