WASHINGTON (CN) — Change may be afoot in the Senate Judiciary Committee, as the panel’s Democratic leadership has signaled that it’s open to finally lowering a multi-administration blockade on blue slips for U.S. circuit court nominees.
But any détente in partisanship, Democrats say, must take place before lawmakers know who will hold the White House — and the Senate majority — after November’s elections.
A longstanding tradition in the upper chamber, blue slips are designed to allow senators to support or oppose presidential nominees for courts covering their home states.
While lawmakers have historically submitted blue slips for both U.S. district and U.S. circuit court appointments, things changed in 2017 when Iowa Senator Chuck Grassley, then chair of the Judiciary Committee, moved away from the practice for the circuit court.
Grassley argued at the time that he would not treat blue slips as “single-senator vetoes” and that his policy was in line with a century of Senate tradition.
The distinction between nominees for U.S. district and U.S. circuit courts has largely persisted under the upper chamber’s Democratic majority, with Judiciary Committee chair Dick Durbin maintaining blue slips for district appointments but reserving the right to move ahead with circuit court nominees without home state senator support.
Durbin has previously pointed out that there cannot be one standard for Republicans and another for Democrats. But on Thursday, he expressed willingness to resolve the partisan lockout of the circuit courts.
Speaking during a business meeting in the Senate Judiciary Committee, the Illinois Democrat said he would be “glad to join” any conversation about revamping the blue slip tradition to apply to circuit court nominees once again.
“There’s one premise,” Durbin caveated: “If we’re going to do anything on blue slips and circuit court judges … we should do it prospectively — not knowing the outcome of the election which may or may not change presidents.”
Speaking to Courthouse News on the sidelines of Thursday’s meeting, the Judiciary Committee chair said once again that he was open to discussing the issue but stressed that any action should take place before the November election.
“If we can have members of the Senate serving their own opportunity and authority in a responsible way, we should encourage it,” he said.
Renewed discussions about the role of blue slipping for circuit court nominees came amid Republican anger about the Judiciary Committee’s decision to press forward with the nomination of Kevin Ritz, a U.S. attorney tapped by the White House to fill a vacancy on the U.S. Court of Appeals for the Sixth Circuit.
Tennessee Senator Marsha Blackburn has accused President Joe Biden and Democrats of orchestrating a “backroom deal” on Ritz, who if confirmed would hear cases from lower courts in the Volunteer State. The Tennessee Senate delegation, she has said, was not properly consulted on the nominee.
Some Democrats pushed back on the GOP complaints, arguing that their colleagues had been the first to ignore home state senators when it came to advancing circuit court nominees.
Rhode Island Senator Sheldon Whitehouse pointed to historical examples of Republicans forcing through circuit court picks without Democratic consent, alluding to the late California Senator Dianne Feinstein who he said bristled at the idea of a circuit nominee “being shoved down her throat because of the lack of a blue slip rule.”
“This problem goes back to a determination made by Republicans,” Whitehouse said, adding that he would be happy to consider walking back the precedent, but reminding his colleagues that many Democrats were “burned hard by that rules change.”
Republicans were equally quick to blame Democrats for the state of things.
North Carolina Senator Thom Tillis argued that the devolution of Senate judicial traditions truly began in 2013 when then-Senator Harry Reid invoked a “nuclear option” in Senate procedure which reduced the voting threshold for confirming court nominees to a simple majority. Whitehouse, however, contended that had nothing to do with the present blue slip debate.
New Jersey Senator Cory Booker urged Democrats and Republicans to work together on the issue.
“We could just sit here and curse the darkness or point fingers at who caused it,” he said, “but I’m happy to meet with anybody that wants to try to figure a way out of this mess. This is wrong, and I believe we should get back to where we were before.”
Carl Tobias, chair of the University of Richmond School of Law, observed that any effort to return to the traditional parameters of blue slipping would be a “gentleperson’s agreement” rather than an a congressional resolution or legislation.
“That’s doable, but difficult to enforce,” he said, contending that Republicans could easily renege on any sort of deal if Donald Trump were to retake the White House
But if a powerful Judiciary Committee lawmaker, such as South Carolina Senator Lindsey Graham, cosigned such an agreement, it would add a degree of legitimacy, Tobias opined.
Judiciary Democrats have long stood by the blue slip tradition for district court nominees. Durbin has repeatedly defended the practice as a last vestige of bipartisanship, noting on several occasions that he has bucked calls from some of his more progressive colleagues to do away with blue slips.
Some lawmakers and experts argue that blue-slipping is prone to abuse and that senators can leverage the consent lever to block the White House’s judicial agenda.
Meanwhile, the Judiciary Committee advanced Ritz’s nomination to the Sixth Circuit on an 11-10 party line vote. Republicans have attempted to frame the U.S. attorney as ethically dubious, pointing to complaints that he had misrepresented the terms of a plea deal to defense counsel in a 2008 case he prosecuted in the Western District of Tennessee.
Durbin pointed out Thursday that, while those allegations formed the basis of a formal complaint to the Justice Department’s Office of Professional Responsibility, the agency dismissed the case as meritless. The lawmaker framed allegations against Ritz as “untrue, unfounded and wholly inappropriate.”
“What you saw this morning was the ongoing confirmation war heating up again in an election year with candidates for president that nobody likes,” Tobias said of the Ritz controversy. “My perception is that the Republicans are just turning down the screws.”
The Judiciary Committee also advanced three U.S. district court nominees on similar party line votes: Brian Murphy, nominated to the District of Massachusetts, Rebecca Pennell, tapped for the Eastern District of Washington and Jeannette Vargas, nominated to the Southern District of New York.
Follow @BenjaminSWeiss
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
