With the disastrous consequences of the far-right's takeover of the federal court system becoming clearer by the day, the Democratic chair of the Senate Judiciary Committee is facing intense criticism for preserving a tradition that is allowing Republicans to veto judges nominated by President Joe Biden.
The so-called "blue slip courtesy" is a nonbinding Senate norm that allows lawmakers to reject nominees for court seats in their home states.
While Republicans didn't hesitate to dispense with the informal rule when they were ramming through far-right judges at a torrid pace during former President Donald Trump's four years in office, Sen. Dick Durbin, D-Ill., has chosen to adhere to the blue slip norm for district court nominees.
That decision garnered fresh anger last week when Sen. Cindy Hyde-Smith, R-Miss., announced she would not return a blue slip for Scott Colom, a Biden nominee for the U.S. District Court for the Northern District of Mississippi. Collum had already received approval from Mississippi Sen. Roger Wicker, also a Republican.
CNN noted Monday that "Durbin's office blasted Hyde-Smith's opposition to Colom in a statement that did not indicate whether he was rethinking the blue slip rule."
"The rule has not been respected consistently through the modern history of the Senate, and Republicans nixed the requirement for U.S. circuit court vacancies under Trump. Democrats, now in control, have refused to bring it back for appellate nominees, but Durbin has said he'd like to keep it in place for district courts," the outlet reported. "Durbin didn't waver on that position when Sen. Ron Johnson [R-Wis.] flip-flopped last year on his support of a district court nominee in his home state, state Judge William Pocan, effectively torpedoing Pocan's nomination."
Progressive advocacy groups said Monday that Durbin's refusal to ditch the blue slip tradition was made even more outrageous by a Friday ruling from Trump-appointed U.S. District Judge Matthew Kacsmaryk of Texas, who deemed the Food and Drug Administration's (FDA) approval of the abortion medication mifepristone invalid. The U.S. Justice Department is appealing the ruling.
Shortly after Kacsmaryk handed down his ruling, which parroted anti-abortion talking points, U.S. District Judge Thomas Rice of Washington State—an Obama appointee—issued a conflicting decision ordering the FDA to maintain access to the pill.
"If last week's appalling ruling from a MAGA judge attempting to ban abortion medication has taught us anything, it's that judges matter. Senate Dems must do everything in their power to confirm [Biden's] nominees, including eliminating the blue slip ASAP."
Hyde-Smith praised the Kacsmaryk ruling, calling it a "victory for pregnant mothers and their unborn children."
This is the same Republican senator being allowed to block a Biden judicial nominee because of Sen. Durbin’s blue slip policy. https://t.co/zBUdlPyPXZ
— Demand Justice (@WeDemandJustice) April 8, 2023
Durbin's adherence to the blue slip norm has also drawn frustration and backlash from fellow Democrats.
"If it's a blue slip problem and the Republicans aren't turning in their blue slips and they're being obstructionist, then we need to think about changing the rules," Sen. Mazie Hirono, D-Hawaii, told CNN.
In a tweet late Friday, former Rep. Mondaire Jones, D-N.Y., faulted Durbin for "allowing the blue slip process to prevent confirmation of Democratic judges in red states" as right-wing judges attempt to further weaken abortion rights.
Meanwhile, Senator Dick Durbin allows the blue slip process to prevent confirmation of Democratic judges in red states. https://t.co/3PYYqP34km
— Mondaire Jones (@MondaireJones) April 8, 2023
The Senate approved 96 federal judges during Biden's first two years in office, outpacing all of his recent predecessors.
But the upper chamber confirmed just 34% more Biden judges in 2022 compared to the previous year, whereas the Senate under Trump approved 177% more judicial nominees in the former president's second year in the White House than in his first.
The Senate greenlit a record 231 federal judges—not including Supreme Court justices—during Trump's four-year tenure, filling vacancies across the country with young, often unqualified right-wing judges who will have significant power over U.S. law for decades to come.
In addition to further imperiling abortion rights, Trump-appointed judges have recently issued rulings against student debt cancellation, LGBTQ+ protections, and efforts to revoke anti-immigrant policies implemented by the former president.
According to the American Constitution Society, 18 Biden judicial nominees are awaiting floor votes, 12 still must be reported out of the Senate Judiciary Committee, and six are still waiting for hearings.
The Biden administration has thus far refused to pressure Durbin to drop the blue-slip rule entirely, even after Hyde-Smith made clear that she would try to tank Colom's nomination.
Durbin has said the recent and indefinite absence of Sen. Dianne Feinstein's, D-Calif.—a member of the Senate Judiciary Committee—has had an impact on the panel's ability to advance judges.
CNN observed that since Feinstein's office announced in early March that the senator was hospitalized with shingles, "the committee has only approved one nominee, Judge Matthew Brookman, the GOP-supported appointee for the Indiana district court seat."
But The American Prospect's David Dayen stressed Monday that the Senate GOP only has effective veto power over Biden judges "because Durbin refuses to revoke the blue-slip tradition that willingly grants Republicans the ability to obstruct."
