And it’s not the only arcane change that Democrats have benefited from, taken right out of the GOP playbook, when it comes to judicial fights.
Senate Judiciary Chair Dick Durbin (D-Ill.) is continuing his GOP predecessors’ move to nix the veto power that home-state senators once wielded over circuit court nominees. That tradition is known as the”blue slip,” named for the paper that senators use to express their favorable or unfavorable opinion about a specific judicial pick. Durbin took his first formal step against the practice this month, moving forward on a circuit court nominee who would represent Tennessee and lacked support from both GOP Sens. Marsha Blackburn and Bill Hagerty.
“Senate Democrats and the Biden administration are not allowing Republicans to play by one set of rules and Democrats by the other,” said Christopher Kang, chief counsel at the liberal group Demand Justice. “Of course they should take advantage of the fact that blue slips don’t exist anymore for circuit court judges, and obviously the fact that the time has decreased now to two hours for district court nominees.”
Senate Democrats’ approach to judicial nominees under Biden carries a huge potential lesson for the filibuster battle: It underscores the likelihood that any rules change in the chamber will eventually be used by the party in power, regardless of that party’s stance when out of power. For example, Republicans highlighted former Senate Majority Leader Harry Reid’s 2013 elimination of filibusters for executive-branch and most judicial nominees when they axed the 60-vote margin for Supreme Court justices in 2017.
That 2017 change will theoretically make it easier for Democrats to fill a vacancy on the Supreme Court, should one arise this year. Minority Leader Mitch McConnell has adamantly defended the legislative filibuster, and Republicans argue confirmation rules changes are a separate category from legislative rules changes. But some in the GOP acknowledged that the latest Democratic fight to change the filibuster could set a precedent if they take back the majority.
Unlike former Presidents Donald Trump and Barack Obama, Biden did not fill a Supreme Court seat during his first year in office. But, so far, Democrats have confirmed a total of 42 judges; that includes 29 district court nominees and 13 circuit court nominees, the latter considered a record for the modern era. And Democrats could get to fill even more vacancies if more judges take “senior status” and step aside from the bench with the 2022 midterms election approaching and control of the Senate a toss-up.
Republicans are quick to highlight that the new rules didn’t exist during Trump’s first year in office, hurting his nominations clip relative to Biden’s.
“The Democrats have had the benefit of no 30-hour rule for post-cloture debate for district court nominations, unlike the first half of the Trump administration, so the Biden confirmation pace is not an apples-to-apples comparison,” said Carrie Severino, president of the conservative Judicial Crisis Network.
Prior to leaving for this week’s recess, Majority Leader Chuck Schumer took procedural steps to move forward on three district court judges and one circuit court judge for when the Senate returns. And just as Senate Republicans did under Trump, Democrats are putting forth multiple circuit court nominees on a single panel in order to speed up the confirmation process.
There are currently 39 Biden judicial nominees pending before the Senate. Every judge the Senate has confirmed so far has received blue slips indicating support from home-state senators. But Andre Mathis, whom Biden nominated to the 6th U.S. Circuit Court of Appeals — which includes Tennessee — is the first judicial nominee to advance without a blue slip, although Democrats argue that the White House sufficiently consulted with Blackburn and Hagerty before moving forward.
For Republicans, consultation is “the name of the game” on blue slips, as one GOP judiciary panel aide put it, speaking on condition of anonymity. During the Trump administration, Republicans said that home-state senators would be consulted about circuit court judge nominees but wouldn’t be given a veto. They argue Democrats need to reciprocate.
As circuit court vacancies open up in purple and red states, it’s not yet clear to what extent the White House and Senate Republicans will be on the same page or which vacancies will be prioritized first. Biden recently nominated Arianna Freeman to the 3rd U.S. Circuit Court of Appeals, and while Freeman has support from home-state Sen. Bob Casey (D-Pa.), Pennsylvania GOP Sen. Pat Toomey hasn’t indicated whether he will return a blue slip for her.
Biden has yet to nominate someone to another 6th Circuit vacancy in Ohio, a purple state, or tackle circuit court vacancies in red states like South Carolina, Louisiana and Texas. There are also several circuit court vacancies in blue states like Rhode Island, which could offer the White House a faster confirmation process, with buy-in from home state senators.
“In a number of those states in those circuits, where, especially for us, we know so much pivotal litigation is happening … there’s certainly a lot of opportunity where we need to move quickly,” said Lena Zwarensteyn, senior director of the Fair Courts Program at the Leadership Conference on Civil and Human Rights.
Similar to Republicans, Democrats have preserved blue-slip veto power for district court nominees. While Sen. Rob Portman (R-Ohio) returned blue slips for three district court nominees for his state, it’s not clear yet whether Sen. Ron Johnson (R-Wis.) will return a blue slip for William Pocan, a Wisconsin district court nominee and the brother of Rep. Mark Pocan (D-Wis.).
Senate Democrats note that Biden’s current vacancies to fill in red or purple states tend to be replacements for judges appointed by Democratic presidents. Nonetheless, they might be well-served to move quickly on those vacancies, with both Republicans and Democrats on the Judiciary Committee eyeing a November election that could hand the GOP control of the Senate. Republicans warn they could stall Biden’s judicial nominees if they win the majority in 2023, should they deem home-state senator consultation insufficient this Congress.
“I obviously hope we keep the Senate,” one Democratic Judiciary panel aide said, speaking candidly on condition of anonymity. “But if not, time is of the essence, and I think everyone is keenly aware on that front.”