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Blue Slip Paradise


When Dianne Feinstein finally stepped away from heading Judiciary, Sheldon Whitehouse should have been the first senator up. He has a long-standing reputation for not putting up with Republican nonsense. But that was a step too far for Dick Durbin, who had the caucus change the rules so that the Majority Whip can also lead a committee. Unfortunately, Durbin is an institutionalist’s institutionalist and so he, like Patrick Leahy and Feinstein before him, continues to allow the blue slip to exist.

Last February, Senator Ron Johnson, Republican of Wisconsin, abruptly decided to block a nomination for a federal judgeship, though Mr. Johnson actually recommended the nominee just eight months before.

Why the reversal? It was never very clear. Mr. Johnson said it was because the candidate, Judge William Pocan of the Milwaukee County Circuit Court, didn’t live in Green Bay, where the federal district is. But Judge Pocan didn’t live in Green Bay when Mr. Johnson first recommended him and, at any rate, offered to move to the city if he got the job. Was it because Judge Pocan had something to do with the prosecutors’ decision to give low bail for a domestic violence defendant who later drove his car into a Wisconsin parade, killing six people? That’s what Mr. Johnson implied in his statement, though that accusation would be false: Judge Pocan had nothing to do with the bail decision and was unconnected to the case.

Or was it because Mr. Johnson later learned that Mr. Pocan would have been the first openly gay federal judge in Wisconsin? That’s what Mr. Pocan’s brother, Mark Pocan, a Democratic congressman from the Madison area, charged in an interview, accusing the senator of homophobia. Mr. Johnson denied it.

In the end, none of these possible reasons, or the lack of them, really matter. Mr. Johnson refused to give his home-state permission for the nomination to proceed — declining to return what is known in the Senate as a blue slip — and the nomination stalled, expiring at the end of the Senate term in January. The White House has not renewed it.

The chairman of the Senate Judiciary Committee, Richard Durbin of Illinois, fumed about Mr. Johnson’s decision at the time, saying he was disappointed by the last-minute turnabout and noting that Judge Pocan had received nothing but praise and high ratings from lawyers.

But in fact, there was nothing formal that stopped Mr. Durbin from ignoring Mr. Johnson and proceeding with Judge Pocan’s nomination. There is no rule or law that prevented him from sending it to the Senate floor for final approval. The only barrier was Mr. Durbin’s interpretation of an archaic Senate tradition of courtesy that allows senators to effectively veto federal district judge nominations from their own state for any reason or for no reason at all.

But if we just continue to hold up NORMS, Republicans will eventually come back to reality and we can all hang out naked in the Senate locker room again just like the good old days!

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