Why is Illinois Democratic Senator Dick Durbin — Chairman of the Senate Judiciary Committee, through which all judicial nominees must pass before getting a full Senate vote — letting Republican senators blow off qualified federal judges proposed by President Biden?
Most recently, Mississippi GOP Sen. Cindy Hyde-Smith blocked via “blue slip” Democratic judicial nominee Scott Colom, just like last year when Wisconsin’s Republican Senator Ron Johnson blue-slip-vetoed Judge William Pocan, the brother of Congressman Mark Pocan, apparently because he’s gay.
Next up, Republican Senators Roger Marshall and Jerry Moran brag that they’re contemplating vetoing Biden’s nomination of Jabari Wamble for Federal District Court Judge in Kansas because, presumably, he’s Black.
I’d like to be able to tell you why Durbin is going along with this BS from the Senator’s own perspective, but nobody answers the phone at his five offices I called yesterday afternoon. (DC – 202.224.2152, Chicago – 312.353.4952, Springfield – 217.492.4062, Carbondale – 618.351.1122, and Rock Island – 309.786.5173)
The Senator’s unavailability notwithstanding, what’s going on here is the result of an arcane bit of Senate tradition referred to as “blue slips.”
It’s not a law or even a rule in the Senate, merely a tradition, and one that Durbin’s predecessor as head of the Judiciary Committee, Republican Lindsay Graham, enthusiastically ignored.
Blue slips are rooted in the Constitution’s requirement that senators offer “advice and consent” on federal nominees offered by the president. That constitutional requirement refers to votes of the entire Senate — there’s not even a mention of the powers of Senate committees in the Constitution — but has been applied through tradition, not law, to the Senate Judiciary Committee since the early days of our republic.
What was once a commonsense practice has become an anachronism now used by Republicans to prevent Democrats and progressives from rising to federal judgeships.
On August 3, 1789, President George Washington submitted a list of nominees for positions requiring senatorial confirmation (they were Navy officers who’d be overseeing the collection of port taxes). He sent along a piece of paper with each nominee’s name and a space for an “aye” or “nay” next to it.
Senator James Gunn of Georgia objected to one of the people on the list — a fellow Georgian named Benjamin Fishbourn — because back in 1785, when then-Army Captain Gunn challenged Major General Nathanael Greene to a duel over a dispute about a horse (seriously), Gunn had publicly taken Greene’s side in the squabble. (The duel never happened, although Gunn carried a pistol for a year, hoping to catch Greene unawares.)
President Washington, furious, walked over to the Senate and demanded to know why Gunn was blowing up one of his nominations. Gunn told him that under the Advice and Consent Clause of the Constitution he didn’t have any obligation to explain his objection, although as a courtesy he would say he thought Fishbourn’s character was in doubt. Washington backed down and Fishbourne was not confirmed.
Thus began the Senate tradition of this particular “Senatorial Courtesy” that today we call “blue slips.”
And in 1789 it made a lot of sense, Gunn’s petty personal reasons notwithstanding. How, for example, would a senator from New York know if a judicial nominee from, say, Georgia, was qualified? What if he was a drunk or even a felon? Or just an all-around ass?
There was no radio, TV, internet or other mass communication at the time — the telegraph hadn’t even yet been invented and there were no national newspapers — so generally the only persons in the Senate who knew anything about a nominee were the two senators from that nominee’s home state.
Trusting their judgment for or against people they knew or knew about made a lot more sense than just throwing darts at a board or guessing from the person’s name and resume how qualified they may be, particularly when it came to intangibles like temperament and sobriety.
Starting in 1917, as mass media was growing and radio was spreading across the land, the Senate Judiciary Committee formalized the process by sending a letter about each nominee to each of that person’s two home-state senators. The letter was printed on blue paper, with the request to fill it out and return it to the chairman of the Judiciary Committee, thus the term “blue slip.”
But from 1917 to 1955, even a “nay” returned with a blue slip didn’t stop a judge from being passed out of committee to the full Senate for a vote: they’d merely attach to the nomination a note saying that senator so-and-so had objected to the nomination.
Starting in 1956, however, the new chairman of the Judiciary Committee and avowed white supremacist Senator James Eastland — to prevent the confirmation of judges who may order enforcement of racial integration of schools as ruled by the Supreme Court in 1954 — turned the blue slip “nay” from merely advisory to a full-out Committee-based veto of a nominee.
That policy held until 1979, when Senator Ted Kennedy replaced Eastland as the committee chair. Kennedy ruled that the Committee would revert back to the pre-1955 arrangement, where a negative blue slip from a home state senator would be noted when the nominee was sent to the Senate for a vote but wouldn’t be blocked from emerging from committee.
In 2001, however Senator Orrin Hatch revived Eastland’s blue slip rule as an absolute veto, and in 2003, when Vermont’s Patrick Leahy took over the committee’s chairmanship, he continued the practice, provoking an outraged editorial from The New York Times in 2014 about Leahy letting home-state Republicans block Obama nominees for purely political reasons.
The result was that many of Barack Obama’s nominees never made it onto the federal bench, setting the stage for Donald Trump to overwhelm the federal judiciary with rightwing cranks.
Even worse, when Lindsay Graham took the Committee over in 2019 he went so far as to ignore negative blue slips from Democratic senators. Mitch McConnell — who also opposed the blue slip rule — and Graham moved hundreds of Trump nominees through the Judiciary Committee and onto the Senate floor for confirmation, many over the objections of Democratic senators. It was a virtual assembly line for reshaping the federal judiciary.
In February of that year, for example, Graham passed on to the Senate Eric Miller for the Ninth Circuit Court of Appeals, even though both of his two home-state senators (Patty Murray and Maria Cantwell of Washington) refused to return blue slips altogether. Miller now has a lifetime appointment.
Graham also pushed through nominations of Paul Matey (Third Circuit, New Jersey), Joseph F. Bianco and Michael H. Park (both Second Circuit, New York), and Kenneth K. Lee, Daniel P. Collins, and Daniel Bress (all Ninth Circuit, California), among others, each one over the blue slip objections of their home-state Democratic senators.
Now, inexplicably, we’re back to James Eastland’s 1956 no-school-integration blue slip rules.
Illinois Democratic Senator Dick Durbin is Chairman of the Judiciary Committee and, for reasons apparently known only to him, he’s kowtowing to Republican senators who are routinely and arrogantly using blue slips to block qualified Democratic nominees without explanation.
Two months ago The New York Times weighed in with another outraged editorial asking Durbin to stop letting Republicans block President Biden’s nominees, but so far Durbin is holding firm in his obeisance to the GOP.
Yesterday, on Nicole Wallace’s show on MSNBC, former Senator Claire McCaskill of Missouri complained that her state hasn’t had a US attorney for the full 2 years of the Biden administration, and there are hundreds of open judicial seats nationwide, much apparently because of Durbin letting Republicans exploit and abuse the blue slip tradition.
What started out as a useful and commonsense courtesy grounded in a lack of national media in 1789 has turned into another tool Republicans use to thwart the will of a Democratic administration, just as happened during the Obama administration (leaving hundreds of judicial seats empty in 2017, just waiting for Donald Trump).
Why Dick Durbin — otherwise a generally fine Democratic senator who I respect greatly — is going along with this nonsense is baffling, particularly since he’s threatened Republicans to end blue slips in the past if they continue to abuse the privilege.
But perhaps he’ll tell you, particularly if you live in his state of Illinois.
His phone numbers are listed above (you can usually leave messages) and his email contact page is here.
It’s way past time for Democrats to wake the hell up and stop playing by the GOP’s one-sided rules. The federal judiciary — particularly now that it’s packed with over 300 of Trump’s rightwing crackpots — is too important to leave to further Republican manipulation.