Survey says “no:”
Today, there are more than 80 [federal court] judicial vacancies without nominees, out of 119 announced vacancies. One of the driving causes for this is too much White House deference to senators—both Democratic and Republican. The Biden administration needs to take a more assertive approach and show it is willing to bypass Senate tradition if senators are not proving good partners.
In states with Democratic senators, the White House is honoring a longstanding tradition that allows senators of the president’s party to recommend district court candidates to the White House. This is fine, but the White House needs to be firmer in enforcing its own deadlines in states where senators are moving too slowly. Even before Biden’s inauguration, White House Counsel Dana Remus told Democratic senators to submit recommendations within 45 days of a vacancy being announced, but it is clear from the number of long pending vacancies without nominees that many senators are ignoring this timeline. In California alone, there are nine district court vacancies without nominees—five of which were announced more than a year ago. [Ed.: Could DiFi’s rapidly accelerating dementia have anything to do with this? Or is even asking that question “ageist?”] Time is running out, and the White House needs to start enforcing its request by bypassing senators where necessary.
And then there’s our old friend the blue slip:
To move forward with nominations in states with Republican senators, the White House and Senate Judiciary Chair Dick Durbin must be willing to bypass a Senate tradition known as blue slips, which allow any senator to functionally veto district court nominees in his or her own state. This tradition was weaponized by segregationist senators to stop pro-civil rights judges nominated in their home states, and during the Obama administration, it persisted as an enormous obstacle to diversifying the judiciary. Anyone who thinks the White House can work with Senate Republicans on judicial nominations should look at Wisconsin, where Sen. Ron Johnson recommended a qualified district court candidate, only to abruptly pull his support after the nomination was actually announced. It’s worth noting that when Republicans controlled the Senate under Donald Trump, they ignored blue slips from Democratic Senators on circuit court nominees, effectively dismantling that deference for Democrats when they are out of power. Abolishing the blue slip custom once and for all will require cooperation from the Senate, but the White House should force the issue and expose the absurdity of the system by nominating qualified, professionally diverse nominees in these states and daring the Senate to block them.
Keep in mind that all this nonsense is purely a matter of institutional etiquette, rather than actual law. We’re less than six months away from Mitch McConnell & Co. forcing 100+ federal judgeships to remain unfilled, but is there any sense among the Democratic party’s power elite that this thing that is obviously about to happen is obviously about to happen?
The White House increasing nominations will be of little use, though, if the Senate Judiciary Committee ends up serving as a bottleneck. Before being confirmed, each judicial nominee must appear before the committee for a hearing. As a result, the number of hearings scheduled and the number of nominees who can appear at each hearing are probably the most important factors in determining how many nominees will be confirmed before the end of this Congress. Right now, committee Democrats are following norms and recent practices, but this is simply not sufficient to fill every judicial vacancy—and indeed, sets a path that would leave more than 60 seats open.
The norm is for the committee to hold a nomination hearing every two weeks that the Senate is in session. At that pace, it will hold only six more hearings with enough time for committee votes this year. The current practice—which was set when Republicans expanded it to process Trump judges more quickly—calls for two circuit and three district nominees per hearing. So this schedule would allow for hearings for only 30 judicial vacancies, while 65 receive no committee consideration at all—and that assumes that every hearing slot is used for lifetime judicial nominees, even though just last week, the committee gave a slot to a Department of Justice nominee.
Despite this stark reality, a judiciary committee aide recently told Bloomberg News, “I don’t think there’s any reason for us to change the way we’re operating.” That’s simply wrong. The judiciary committee must take a page out of the playbook Senate Republicans used during the Trump administration and schedule additional hearings and add to the number of nominees who can be considered at each hearing. Holding more hearings may be less convenient for those involved, but with so much at stake, it’s essential the committee follow the Republican model set during the Trump administration, which included holding hearings in consecutive weeks and even while the Senate was in recess.
Ah, the “norms.”
At the exact moment that a heavily armed right wing lunatic was murdering a bunch of people at a July 4 parade yesterday, I was at another July 4 parade in the small Colorado mountain town of Buena Vista. There were probably about a thousand or so people lining the main street of the town — it’s called Main Street — and I couldn’t help noticing that I appeared to be the closest thing to a non-white person there, and I’m about as non-white as Rafa Nadal.
I also couldn’t help noticing that there was polite applause for both the Young Republicans float and that of the Democratic Party of Chafee County, as if we were all still part of the same country, in some basically polite, norm-saturated way, even as that country slouches toward theocratic fascism, one suburban terrorist incident and one breached Senate norm at a time.
I suspect these two things are closely connected.