Majority Leader Mitch McConnell did a bang up job getting President Trump’s Supreme Court and court of appeals nominees confirmed. When it comes to district court judges, things haven’t gone nearly as well for Trump, as a Power Line reader and distinguished alumnus of Dartmouth explains.
Accounts of President Trump’s largely successful efforts to reform the federal judiciary overlook an ugly secret: The White House has been blocked from nominating any judicial candidates in many Blue States, and forced to nominate many left-of-center candidates, including former Obama nominees, in other Blue States.
Why? Because Senate Republicans allow a single Democratic Senator to veto the President’s nominees with the infamous “Blue Slip.” Unless Senate Republicans act, on January 20, 2021, they will give President Biden almost 50 judgeships to fill which could have been filled by Republicans – many such judgeships were vacant for the last four years.
Why has the White House been forced into Faustian bargains? Because the Senate “Blue Slip” custom allows a single senator from the nominee’s home state to block his nomination.
The “Blue Slip” procedure is not a law or even a Senate rule; it is merely a Senate custom, in the past sporadically followed, pursuant to which the Senate Judiciary Committee will not consider a nominee unless the nominee’s home-state Senators return a blue slip of paper allowing the nomination to proceed. That’s right, a single Democratic Senator can veto a qualified nominee simply because the nominee is a Republican.
Indeed, while the Senate has confirmed almost 120 of President Trump’s trial court nominees, the vast majority have been from states with two Republican Senators where the Blue Slip is not an issue. Most of the remaining 47 federal district court vacancies are in states with Democratic Senators who can single-handedly veto candidates. For this reason, Trump’s progress has stalled.
Moreover, the White House has been forced to nominate left-wing candidates. For example, 2 of the 4 federal district court judges nominated by the White House for trial court vacancies in the Eastern District of New York were nominated by Obama during the previous administration. The White House had to horse trade with New York’s two Democratic Senators – allowing the Democrats to fill some judgeships with their left-leaning nominees — to prevent them from vetoing Trump’s other nominees to New York vacancies.
The White House has been forced to nominate left-wing judges even though Senate Republicans have the majority necessary to confirm Trump’s qualified nominees regardless of Democratic resistance. Traditionally, the “Blue Slip” veto was rarely used, and used only to block unqualified nominees.
During the Trump Administration, Senate Democrats weaponized the Blue Slip to force the White House to nominate left-wing judges, or simply to block any nominee and leave seats vacant in the hope Trump would lose the 2020 election. California, Washington State, New Jersey, New York, Massachusetts, and other blue states have many open judgeships that have sat vacant for years as Democratic Senators from such states prevent the White House advancing nominees. There currently are 47 vacancies.
Senate Majority Leader Mitch McConnell rightly has prided Republicans for largely eliminating the Blue Slip requirement for federal appellate judges due to misuse by Senate Democrats. Noting that Senate Democrats eliminated the filibuster for judicial nominees under Obama, McConnell correctly argues the Senate should not let a lone Senator veto an appellate court nominee through the Blue Slip if the Senate will not allow 41 Senators to filibuster a nominee.
The same logic applies with equal force to trial court nominees, but McConnell and Senate Judiciary Committee Chair Lindsey Graham refuse to eliminate trial court Blue Slips.
Why does the Blue Slip persist? The Blue Slip has allowed Senators great influence in advancing those they favor for federal judgeships from their home states. This gives the Senators a plum they can award to supporters.
Setting aside whether patronage is a legitimate way to select judges, Republicans are crazy if they believe Democrats will not eliminate the Blue Slip for judges as soon as Democrats again control the White House and Senate. After the Democrats’ shoddy – indeed unprincipled and outrageous — treatment of then Judge Kavanaugh, one would have thought Senate Republicans would have eliminated the Blue Slip, realizing some Democrats will stop at nothing to block Republican nominees. Alas, they have not.