Opinion | Senate Democrats need to play hardball

Caroline Fredrickson and Alan Neff recently wrote about blue slips for Just Security:

“The blue slip is an opaque — and inherently obstructionist — Senate tradition that allows a single Senator in any State to block a presidential nominee to the District Courts in their electoral patch merely by withholding their consent to consideration of the nominee in Committee. Like the filibuster, the blue slip allows Senators to halt Senate action without ever having to explain themselves to their Senate colleagues, their constituents, or the public, even if it means more criminal and civil cases languish unresolved on federal trial-court dockets for longer periods.”

Durbin could end this practice at any time, removing another abuse of minority-party power in the Senate. It’s one that has been spectacularly abused by Republicans, who have pushed through grossly unqualified, unfit nominees nominated by Republican presidents and yet nixed perfectly acceptable judges nominated by Democratic presidents.

The most egregious example occurred just last year. President Biden nominated Judge William Pocan to the U.S. District Court for the Eastern District of Wisconsin in December 2021. Conspiracy-mongering Sen. Ron Johnson (R-Wis.) first approved the nomination but changed his mind on the eve of the hearing when the nominee and his family were already in D.C.

Durbin issued a huffy statement, which read in part:

According to Sen. Johnson’s statement, he is withholding a blue slip on this nomination because Judge Pocan does not currently live in Green Bay, Wisconsin. But as I understand it, Judge Pocan does live nearby and has made it clear that he would relocate to Green Bay,” Durbin said. “What’s more, Sen. Johnson knew full well back in June that Judge Pocan did not live in Green Bay at this time. Yet that did not prevent the bipartisan Wisconsin Federal Nominating Commission from recommending Judge Pocan to Senators Baldwin and Johnson. And it did not prevent Sen. Johnson from joining Sen. Baldwin in recommending Judge Pocan to the White House as one of the four candidates to fill the Eastern District of Wisconsin vacancy. Let me emphasize that point — Sen. Johnson is blocking this Committee from proceeding on a nominee he recommended to President Biden …

My office learned secondhand that Senator Johnson would prevent Mr. Pocan from going forward at 7:00 o’clock last night. Such a lack of communication is unacceptable and, frankly, disrespectful to the nominee and his family.

However, the blue slip process remained. The Eastern District of Wisconsin still does not have a nominee.

In January, Durbin wrote a letter to colleagues essentially begging them to be more bipartisan and cooperative. (This Republican Party?) “Democratic Senators returned 130 blue slips for President Trump’s district court nominees. This enabled 84 district court nominees to be confirmed — nearly 50 percent of all district court confirmations under President Trump,” he wrote. However, “To date, my Republican colleagues have returned only 10 blue slips on district court nominees.”

Nothing changed, unsurprisingly.

Last week, Carl Hulse wrote for the New York Times:

Then last week, Sen. Cindy Hyde-Smith, Republican of Mississippi, served notice to the Judiciary Committee that she would not allow the nomination of Scott Colom, a candidate for a court vacancy in the state, to move forward, citing his past political support from the left, among other reasons. Her stance endangered the confirmation of Mr. Colom, a popular Black Democratic state prosecutor who had the backing of Roger Wicker, the other Republican senator from the state, as well as leading Mississippi Republicans including two former governors, Haley Barbour and Phil Bryant.

Durbin had previously promised he would respect blue slips unless the decision to withhold the blue slip was based not on the nominee’s qualifications but on race, gender or sexual orientation. Apparently, this didn’t qualify in his eyes.

Durbin’s appeals to shameless Republicans have accomplished nothing. Instead, he has allowed Republicans to run amok. Is it any surprise that when they were asked to approve the request from Sen. Dianne Feinstein (D-Calif.) to be removed from the committee, they balked? Plainly, they know they have nothing to fear from Durbin.

Committee Democrats can, if they choose, push Durbin to end the blue slip practice. They also could demand a hearing on Supreme Court ethics, on book banning, and on the effects of Dobbs and abortion bans. They might even hold hearings on corruption in the prior administration or on domestic terrorism. They could hold hearings on nationwide injunctions and single judge divisions, which allowed for Judge Matthew J. Kacsmaryk’s abysmal ruling on the abortion drug mifepristone.

All these would be appropriate uses of oversight power — unlike House Republicans’ stunts. They’ve done none of that.

Voters, court reformers, progressive advocacy groups, donors and even Vice President Harris — a former committee member who is strenuously working to keep the plight of women denied abortions in the news — could all apply pressure. Democrats cannot attend to the threats to democracy if they play by Marquess of Queensberry rules and apply to Republicans’ nonexistent good faith.

The voters elected a Democratic Senate and Democratic president; they have a right to expect swift confirmation of qualified nominees when democracy remains vulnerable. Voters have a right to expect Senate investigations into questionable actions at the Supreme Court and elsewhere.

Durbin and his fellow Democrats need to learn to play hardball.