During President Donald Trump’s four years in office, his administration was hyper-focused on the federal judiciary. All told, Trump managed to appoint 226 judges to Senate-confirmed lifetime appointments—nearly a quarter of the entire federal bench. Many of those appointees are unabashed partisans who will shape the law for decades to come.
Thus far, President Joe Biden has made clear his own ambitions to remake the courts, minus the slew of patently unqualified candidates championed by the Trump administration. Biden has moved quickly to nominate 13 candidates to the powerful federal courts of appeals, which are the last word on the law short of the Supreme Court; the Senate has confirmed six of them. Of Biden’s 38 nominees to vacant district court judgeships—the front lines of the federal legal system—13 have been confirmed. The professional profiles of these lawyers are just as notable: Far more have backgrounds in criminal defense and civil rights than did the nominees of Biden’s Democratic predecessors.
But despite this record of relative success, when it comes to the district courts, Biden’s judicial agenda is not distributed equally across the country. Out of those 38 district court nominations, 35 have come in states with two Democratic senators. The only exceptions are the three Ohio nominations announced last month.
This imbalance is due, at least in part, to an arcane feature of Senate tradition known as the “blue slip”: Both senators from any potential nominee’s home state must submit literal blue slips of paper to the Senate Judiciary Committee that signal their approval for the nomination to move forward. During the administration of President Barack Obama, Republican senators were able to quietly scuttle many nominations by simply refusing to return their blue slips. In other cases, the threat of an unreturned blue slip allowed Republicans to ward off nominations altogether.
Senate Democrats tried to do the same during the Trump administration. But unlike Senate Democrats, Senate Republicans weren’t willing to let a minority party stall their agenda and functionally eliminated blue slips for appeals court nominees. Democrats didn’t reinstate the practice when they took control of the Senate in January.
Senate Republicans did not, however, eliminate blue slips for Trump’s district court nominees. Why not? They may have simply been too busy packing the more powerful appeals courts to bother. Or perhaps they didn’t think they needed to, because Democratic senators did return blue slips for some of Trump’s district court picks. By the time Trump left office, the GOP-controlled Senate had confirmed 38 district court judges in states with two Democratic senators—about one-fifth of the total number of district court judges Trump confirmed.
If Plan A is to make nice with authoritarian ethno-nationalists who are openly planning to get rid of democracy any time they lose any elections going forward, you might just need a different plan:
To date, Biden’s team has been searching for workarounds to the blue slips impasse by negotiating with Republican senators to nominate compromise candidates for red-state judgeships, Dash said. But reaching this kind of consensus with Republican senators necessarily changes the lists of nominees that are produced. The administration is “not putting the same kinds of nominees in red or purple states as in blue states,” Dash said, though she added that “that doesn’t mean there’s no progress.”
The search for consensus has been most successful in states with only one Republican senator. The White House announced three nominees in Ohio last month, including a career public defender. In Wisconsin, Senators Ron Johnson, a Republican, and Tammy Baldwin, a Democrat, jointly recommended four candidates to the White House, including a public defender. Both sets of candidates were the products of bipartisan commissions in which both senators participated.
In states with two Republican senators, this sort of compromise procedure is off the table. But, Kang noted, states in which Republicans control the political system might be the ones where Democrats have the most to gain by moving aggressively.
“In a lot of these states with two Republican senators, they also have Republican governors and state legislatures that are going out of their way to disenfranchise people, with a disproportionate impact on people of color,” he said. “Those are the kinds of places where you especially want good judges who could apply the Constitution fairly, and yet we’re going to have greater vacancies or less good judges because of these blue slips.”
Recent developments in Florida, which is represented in the Senate by two Republicans, demonstrate how Republican obstruction can warp the nomination process. A commission led by Florida’s congressional Democrats drew up a list of potential nominees for two open district court judgeships in the state; a separate commission led by Republican Senator Marco Rubio drew up its own list in opposition. There were two common names between the lists: Detra Shaw-Wilder, a corporate lawyer, and David Liebowitz, a former federal prosecutor whose billionaire uncle is a major Rubio donor—hardly the stuff of progressive dreams.
Lawyers from more nontraditional backgrounds who made the Democrats’ list, like federal public defender Michael Caruso, were not included in Rubio’s picks. That means that absent blue slip reform, there’s no way for Caruso—or most of the Democratic picks for the Florida openings—to move forward. And since the Democratic commission selected their list of potential nominees in May, there’s been no movement on any nominations in Florida, Pierre said.
“There’s been nothing. And I’m just like, ‘Hey, we’re important too,’” he told me. “I don’t think that the administration appreciates the sense of urgency that we on the ground feel.”
The Senate is going to literally be the death of this nation.