So. Judges.

Donald Trump appointed a record 234 judges, most of them young, unqualified rightwing Federalist Society hacks who will spend the next several decades doing everything they can to take rights away from people.

Putting sane, smart, qualified people on the federal bench needs to be a major priority for both the Biden administration and Senate Dems.

There is one Democrat in the Senate who holds more power than anyone else when it comes to judicial appointments, and it isn't Chuck Schumer. It's Senate Judiciary Chair Dick Durbin of Illinois.

The Judiciary chair isn't just in charge of setting committee hearings for judicial nominees; he (and I use the word "he" intentionally, as the Senate Judiciary Chair has NEVER, NOT ONCE been anyone other than a white man) also is the sole decider of how seriously to take objections to nominees from home-state senators.

This week, we learned that Durbin intends to take a middle-of-the-road approach to "blue slips," which is the way senators show whether or not they approve of nominees from their states. It's a continuation of the policies Republican Judiciary chairs went with under Trump.

A Democratic Senate Judiciary Committee aide told Politico, "Chair Durbin has said on a number of occasions that there cannot be one set of rules for Republican nominees and another set of rules for Democratic nominees."

And that's great, really.

Just as long as you trust the party of Donald Trump and Mitch McConnell to act in good faith and voluntarily choose to follow the same rules once they're back in power.

The same Democratic aide said, seemingly without irony, "It's our expectation that Republicans likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states."

So all we have to do is put our faith in Republicans and everything will be just fine.

Let's talk blue slip history

This is really interesting, I swear!

Blue slips originated in the 1910s, but until the '50s they were just used as an informal tool to gauge how senators felt about a nominee. The blue slip itself is a literal blue slip of paper the Judiciary Committee chair sends to senators from the nominee's home state. If the senators are okay with the nominee, they return the blue slip with a positive response; if not, they withhold the blue slip or return it with a negative response.

Senators view blue slips as an important part of the "advice and consent" of the Senate for judicial nominees. It also gives minority-party senators the chance to talk to the president about potential vacancies in their states.

Because blue slips are a courtesy and not codified as an actual rule, when — or whether — to respect them is entirely up to the Senate Judiciary Chair. This means the procedure can — and often does — change based not just on what party is in power but also who happens to be in charge of the committee.

Since 1979, blue slips have played a role in which nominees get hearings. Sometimes, a single withheld blue slip from a home-state senator indefinitely kills a nomination; sometimes, two blue slips are required; sometimes, they are considered on more of an ad hoc basis.

My personal favorite: When Joe Biden was Judiciary chair in the early '90s, he didn't let withheld blue slips stop him from holding hearings ... on Republican nominees. If that isn't peak Dem, I'm not sure what is.

For six years of his presidency, Obama had a Democratic Senate; but then-Judiciary Chair Patrick Leahy decided that a strict interpretation of the blue slip rule was more important than confirming judges. And when Republicans took over the chamber in 2014, they had absolutely zero incentive to change that. As a result, a number of seats that should have been filled by Obama were instead filled by Trump.

Chuck Grassley and Lindsey Graham were the Judiciary chairs under Trump. Despite the strict adherence to blue slips under Obama, Grassley and Graham did away with that courtesy for appellate court vacancies.
Dick Durbin's plan mostly mirrors Republicans under Trump. And yay, we're maybe finally starting to learn some lessons! I was definitely worried that Durbin would pull a Leahy and allow Republicans to do exactly what they did for Obama's two terms. So this is a step in the right direction!

I just hope the Biden administration doesn't plan on appointing any new district judges in states like Wisconsin, Alabama, Texas, Missouri, Florida ...

Norms, traditions, and unwritten rules

The old, white men who have been in the Senate for decades love traditions and ceremony and norms. Dick Durbin has been in Congress forever and wants to go back to a time when senators were friends and norms mattered and US senators weren't defending violent insurrections.

And I get it, I do.

But I live here in reality (or hell or this simulation, still haven't quite figured that one out), where Donald Trump and Mitch McConnell just spent the last several years pissing all over our democratic norms — and basically getting exactly what they wanted.

In 2016, Mitch McConnell refused to hold a hearing on Merrick Garland's nomination to the Supreme Court for almost a year. This was huge fuckery and entirely unprecedented, but Republicans just made up a fake rule about not confirming SCOTUS judges during an election year. And then, of course, when RBG died, they rushed to put Amy Coat Hanger in her seat as soon as they possibly could.

That is who we're dealing with on the other side, and that is who we are expecting to put tradition over further entrenching their own power.

I'm happy Durbin isn't going back to the Leahy rule of letting a single senator kill any nominee from her state. And reasonable people can disagree on what the right thing to do actually is, here.

But, Dems, it's time for some reflection and lesson-learning.

The next time Republicans control the Senate, do you trust them to follow our lead and care about things like traditions?

I sure don't.

[ Congressional Research Service / Politico ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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