Tensions are escalating between Senate Democrats and the Congressional Black Caucus over the arcane tradition that gives a single senator veto power over President Joe Biden’s judicial picks.
The Black Caucus quietly met with Senate Judiciary Committee Chair Dick Durbin (D-Ill.) last week to lobby against the decades-old Senate practice that Republicans have recently used to block one district court nominee and stall another — slowing Biden’s efforts to stock the federal bench.
Both House and Senate Democrats are worried that the GOP will ramp up its roadblocks of Biden judicial picks through the tradition known as “blue slips,” named for the color of the forms that senators return to approve of home-state judicial nominees.
So the Black Caucus, joined by a coalition of progressive groups, is turning up the heat on Senate Democrats in what’s becoming the most consequential battle over chamber rules since Democrats tried last year to weaken the filibuster.
“I don’t know why anyone, let alone Senate Democrats, would hold up a Jim Crow practice,” Black Caucus Chair Rep. Steven Horsford (D-Nev.) said in an interview on Wednesday, describing the GOP’s use of blue slips against judicial nominees as a civil rights issue.
“It is literally about the fundamental survival of the people we represent,” Horsford added. “And we expressed that history, that context and that necessity to Chairman Durbin. I respect the chairman. He understands the dilemma.”
The dispute has huge implications for the future of the federal judiciary, the Senate and the White House. With the House run by Republicans until 2024 at least, Senate Democrats still can confirm judges for lifetime appointments without a single GOP vote — but Republicans can block some of those nominees from ever getting to the chamber floor by denying blue slips.
The acrimony is particularly acute among House members from blue districts in red states. They’re chafing at their Republican senators’ unwillingness to let nominees through and looking to Senate Democrats to help — even though during the Trump era the CBC urged the GOP to keep the blue slip to give Democrats some say in lifetime nominees.
So Durbin isn’t ready to get rid of the tradition for federal district court nominees. And both Black Caucus members from the Senate, Cory Booker of New Jersey and Raphael Warnock, share his reluctance to change the practice.
In an interview, Durbin said he and GOP senators are negotiating over new Biden nominees that will become public soon. And several GOP senators said in interviews that they are working closely with the White House to address nominees for district court judgeships, U.S. attorney posts and U.S. marshals posts, all of which are subject to the blue slip.
The Senate Judiciary Committee previously abandoned the blue slip for appellate court nominees who cover multiple states. If Durbin wanted to nix the practice for district courts, it would not require a Senate rules change.
Durbin is still receptive to the Black Caucus’ entreaties, saying that he needs a “higher level of cooperation” from the GOP. He estimated that fewer than 20 of Biden’s nominees have received green lights from the GOP, while Democrats provided more than 110 for former President Donald Trump’s judicial picks during his time in office.
“I tried to explain to them the arcane Senate rules. And how difficult it would be to do business. So I don’t know if I convinced them, because a lot of them are frustrated with the lack of cooperation,” Durbin said of his meeting with the Black Caucus.
Republicans have used their blue-slip power recently against two Biden nominees, in addition to last year’s rejection by Sen. Ron Johnson (R-Wis.) of William Pocan — the brother of Rep. Mark Pocan (D-Wis.) — as a district judge. Democrats’ big fear, however, is that Republicans will start using the practice more.
In a letter to Durbin this week, a coalition of progressive groups warned that “39 of the 43 district court vacancies subject to Republican blue slips — 91% — still do not have nominees.” The letter’s signatories ranged from Demand Justice to the League of Conservation Voters to End Citizens United.
“The blue slip policy should be reformed or discontinued to ensure a fair process and stop Republicans from blocking highly-qualified Biden judicial nominees,” the progressive groups wrote. Their ideas: ignore blue slip blockades, force a firm timeline for senators to register their objections and require public explanations for blue slip denials.
Republicans are holding their ground. Sen. Lindsey Graham (R-S.C.), the party’s top member on the Judiciary Committee, said that scrapping the blue slip makes the Senate “irrelevant” and criticized the White House for not conducting sufficient outreach to the GOP.
The White House is “turning to the red states because they’ve filled all the blue states, and it takes consulting. They didn’t even talk to people in Florida for six months. I made them talk to them. So this is a manufactured issue,” Graham said.
White House spokesperson Andrew Bates responded that “the White House has done outreach to every single Republican Senate office that represents a state with a judicial vacancy. In many instances, that outreach dates back to the previous Congress.”
Sen. Cindy Hyde-Smith (R-Miss.) accelerated the blue slip clash after she announced she would stop Scott Colom from taking a Mississippi judgeship. It’s likely that Biden may need to find a new nominee; “Sen. Hyde Smith will not budge,” said one person with direct knowledge of the negotiations who spoke on condition of anonymity.
There are currently more than 65 federal district court vacancies, and 38 of those do not have nominees — many of them in states where Republican senators have veto power. The lower-level courts are the Democrats’ primary focus after prioritizing appellate courts over the last two years.
In addition, Kansas GOP Sens. Roger Marshall and Jerry Moran are slowing the nomination of Jabari Wamble to fill a district court seat while they await Biden’s choice to fill an appellate court vacancy covering their states. In an interview, Marshall said he’s simply being “cautious” and didn’t indicate where they would fall on a blue slip for Wamble.
Sen. Josh Hawley (R-Mo.), a Judiciary Committee member, said he is having “a lot of good conversations” with the White House; as many as three Missouri seats could be open by the fall.
Horsford said Black Caucus members want every Republican withholding a blue slip to disclose their reasoning. He was joined in the Durbin meeting by Black Caucus members Reps. Jim Clyburn (D-S.C.), Terri Sewell (D-Ala.), Joe Neguse (D-Colo.), Troy Carter (D-La.), Robin Kelly (D-Ill.), Al Green (D-Texas), and Booker.
Horsford said the lawmakers emphasized to Durbin that blue slips are not a Senate rule but a custom. For many of his members, Horsford added, “it’s hard for them as the sole Democrat in some of their southern states to defend a policy where one or two Senate Republicans can hold up those nominees.”
Notably, the practice has yielded some success stories. The all-GOP Senate delegations in Idaho and Louisiana worked with the White House to hatch bipartisan agreements, and Indiana’s two Republican senators worked to confirm a home-state judge by a rare voice vote this year.
And Sen. Tammy Baldwin (D-Wis.) said she’s willing to give it another go with Johnson, even after he stopped William Pocan.
As Booker recalled in an interview, he used blue slips to stifle Trump’s judicial picks — underscoring that the power to stop judicial nominees can also help Democrats during GOP presidencies.
Still, Booker is clearly torn: “Anytime you tear up a Senate tradition, you should be really thoughtful about it.”