Democrats Still Aren’t Trying Hard Enough to Reclaim the Judiciary
Joe Biden has appointed the most diverse slate of judges and justices to the federal bench in US history; no other president has even come close. In addition to gender and racial diversity (over 25 percent of the Black women serving on the federal judiciary were nominated by him), Biden has emphasized diversity of experience and backgrounds. So far, almost 30 percent of his nominees have served as public defenders.
Biden has also tapped a lot of new judges for the judiciary, relatively speaking. As of this writing, he and Senate majority leader Charles Schumer have confirmed 84 judicial appointments, outstripping the 69 Donald Trump had made by this point in his presidency. Since Biden refuses to expand the courts to blunt the influence of Trump appointees, filling all the seats he has available to him is the very least he can do.
But as reassuring as the pace of appointments has been, it lags far behind Trump’s judicial haul during his last two years in office. After Republicans lost the House but hung on to the Senate in 2018, Trump and then–majority leader Mitch McConnell upped their confirmation game, adding more than 160 judges to the federal bench. Trump left office with a whopping 234 judicial appointments. And we don’t know yet whether the Democrats will keep the Senate and thus retain the ability to confirm judges during the second half of Biden’s first term.
What this means is that there is still work to be done before the midterms and even, if necessary, during the lame duck session afterward. People who can remember what Republicans do will note that Senate Republicans confirmed 14 Trump judges after the 2020 election, in which Trump lost the presidency and Republicans lost the Senate.
As of this writing, there are 82 federal judicial vacancies. Biden has more than 30 nominees waiting for a vote from the Senate, with another 26 waiting for a hearing. Schumer has committed to holding more votes to fill the judicial vacancies, and Senate Judiciary Committee chairman Dick Durbin has promised to advance “more than 20” nominees before the year is out.
But these catch-up measures are only part of the solution. The other factor that needs to be addressed is Durbin’s stubborn insistence on playing by Mitch McConnell’s rules when it comes to what is known as the “blue slip” process.
Blue slips are an old Senate convention. For the lower courts, senators can return a blue slip indicating their approval of a president’s judicial choice for a court that covers their state. Or they can withhold that consent, and, traditionally, the president will find a more acceptable nominee. Like so many old Senate conventions not required by the Constitution (see: the filibuster), this courtesy gives outsize power to senators in the minority party. By withholding a blue slip, senators can scuttle worthy nominees without having to give a public reason. Indeed, the mere threat of a blue slip is enough to cause presidents who aren’t named Trump to nominate milquetoast judges or even ones from the opposition party.
Blue slips were respected by both parties for a long time—until McConnell and Trump joined forces. After Trump took office in 2017, McConnell started to ignore blue slips for circuit court appointments, forcing unqualified, archconservative judges through for the First, Second, and Ninth Circuit courts over the objection of home state senators. However, McConnell and his Judiciary Committee chairman, Lindsey Graham, did consent to honor blue slips for district court appointments.
When Durbin took over the Judiciary Committee in 2020, he followed McConnell’s lead on honoring blue slips for district courts, and has said he will continue to do so should Democrats hold on to the Senate. “I’m sticking with it,” he said. “We’ve made it work.” But the facts suggest that the only thing Durbin has made work is Republican obstructionism. Since Biden became president, there have been 35 district court openings in states with two Republican senators. To date, 34 of those seats remain vacant.
Moreover, Durbin has basically abandoned some nominees from states with only one objecting Republican senator. Take Wisconsin, where Ron Johnson has refused to return a blue slip for William Pocan, a Milwaukee state court judge who would have been the first openly gay federal judge in the state. Pocan has sat in limbo since Biden nominated him last December, all because one guy decided to oppose him.
Honoring Republican blue slips is bad politics, bad for justice, and also just bad. Blue slips are an anachronistic hangover from a time when the Senate was a hundred white guys who thought they were part of a grand insiders’ game instead of a body tasked with doing the people’s work. It’s bad enough that 40 senators can grind popular legislation to a halt with the filibuster. With blue slips, it takes just one senator to stop a judicial appointment.
And that’s not the worst of it. Blue slips also engender a kind of cronyism between senators and their friends or donors. I’d argue that Biden has made his worst judicial nominations as “favors” to interested senators. He nominated corporate lawyer Jennifer Rearden—a longtime friend of and donor to New York Senator Kirsten Gillibrand—to a seat in the Southern District of New York despite the ire of environmental groups. More odious still, Biden almost nominated an anti-choice Republican, Chad Meredith, to a district court in Kentucky as a “favor” to McConnell and was stopped only because Rand Paul, the other Kentucky senator, refused to return a blue slip.
I think it’s fair to expect that the lifetime appointment of judges who can influence lawsuits about everything from voter suppression to environmental regulation shouldn’t boil down to which senator is owed a favor by the White House. I think it’s fair to demand that judges who are in a position to help politically powerful plaintiffs or defendants shouldn’t have to kiss up to the right senator or make a campaign contribution to get the job. I think it’s fair to ask Democrats to do away with blue slips altogether. Instead of protecting the prerogatives of senators, Democrats should be protecting the integrity of the justice system.
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