Senate Judiciary Chair Dick Durbin is open to reinstating the blue slip on circuit court nominees next year, a proposal that would restore significant power to the minority party to block the White House’s judicial nominees.
Durbin (D-Ill.) said during a committee markup last week that he’d entertain conversations around restoring the blue slip — which home-state senators could use to effectively veto certain nominees — but only if it is bipartisan and agreed to before Election Day. Such a deal would be a high-stakes gamble for both sides, since neither would know who would benefit from the policy change or if future leaders would honor it.
“If there’s any members of the committee that want to start an active conversation along those lines, I’d be glad to join it,” Durbin said. “If we are going to do anything on blue slips on circuit court judges, I think there’s one premise: We should do it prospectively, not knowing the outcome of an election that may change the presidency or may not. That is a fair way to approach it.”
Republicans signaled they’re willing to have the discussion. South Carolina Sen. Lindsey Graham, the top Republican on the panel, said in a brief interview in the Capitol that he hopes “we can find a way forward to have a little bit of a check and balance on the committee.”
Until 2017, Judiciary Committee chairs didn’t move circuit court nominees unless both home-state senators signed off on the candidate. But then-Judiciary Chair Chuck Grassley (R-Iowa) stopped honoring that precedent for circuit court nominees, accusing Democrats of using it as a makeshift filibuster.
After that, the Trump administration and Senate Republicans moved circuit court nominees over objections from Democrats. The Biden administration and Senate Democrats followed suit.
Restoring the blue slip would amount to a seismic shift in the White House’s and Senate’s ability to confirm judges and would restore a significant point of minority power. It would engender pushback from progressives, who have long bemoaned that Democrats should be doing away with all blue slips rather than restoring those already gone. For that reason, and others, such a policy change is far from certain.
A Durbin spokesperson said any changes to the policy would not apply until the next Congress. By requiring the parties to agree before Election Day, both Republicans and Democrats would be taking a risk — that they would be the ones to benefit and the incoming administration and next year’s Senate leadership would abide by the terms. A White House official said it’s up to the committee to make its own rules on blue slips.
Graham wasn’t the only Republican who might be open to the idea. Even Grassley — who said he could be the committee’s chair again if Republicans retake the majority — said he might support such a move.
“I think it’s a good thing to have the blue slip back to where it was,” he said.
Grassley saw the elimination of blue slips as a piece of a larger strategy helmed by GOP Leader Mitch McConnell.
“McConnell had a good plan going and the blue slip for the circuit judges was standing in the way and he wanted to get as many circuit judges on as you could get. And that’s part of the reason it was revised and effectively eliminated,” the Iowa Republican said Wednesday.
The enormous roster of judges the Senate confirmed during the Trump years was a key piece of McConnell’s legacy: his laser focus on installing as many conservative judges as possible.
“McConnell obviously won’t be leader next time. There’ll be a new leader, and that new leader could be a majority leader,” Grassley said, acknowledging that the landscape for judicial strategy is already changing.
Members of both sides of the Judiciary Committee have bemoaned the current circuit court nomination and confirmation process. Sen. Thom Tillis (R-N.C) was sharply critical of the committee advancing the nomination of Kevin Ritz to the Sixth Circuit over the objections of Republican Tennessee Sens. Marsha Blackburn and Bill Hagerty.
“We have politicized circuit court nominees,” he said.
But he also warned that Democrats are building up ill will now and any changes to the blue slip process should take place before next year.
“I think the only way you could take Democrats seriously, you just can’t say: ‘Prospectively next Congress,’” he said in a hallway interview. “Why don’t we start today? And then get people like me who would uphold it going into the next Congress? Because I’m gonna be there and I’m gonna be on Judiciary. But the fact is they’re not willing to do that.”
In the hearing, Democratic Sens. Sheldon Whitehouse of Rhode Island and Cory Booker of New Jersey also indicated they were open to the conversation.
Whitehouse said “a lot of us got burned hard by that rules change” during the Trump administration and that Democrats were shown “disrespect.”
“I’m more than happy to consider trying to undo that and figure out a way to go forward,” he added.
“This happened to me under the Trump administration,” Booker echoed. “I’m happy to meet with anybody that wants to try to figure out a way out of this mess, because I think that what my colleagues are putting out on the other side of the dais is absolutely right. This is wrong and I believe we should get back to where we were before.”
