NY Times Editorial Board Calls on Senate Democrats to End Custom That’s Allowing Republicans to Block Judicial Nominees

The New York Times editorial board called for an end to the Senate’s practice of allowing a single senator to block a federal judicial nomination if that nominee were appointed to serve on a federal court in the senator’s state.

“Blue slips,” as they are called, have been used by senators in both parties to thwart judicial appointees. There are currently more than 80 vacancies on the federal bench, many of which are thanks to blue slips.

The Times editorial notes that Sen. Ron Johnson (R-WI), declined to give his approval for a judicial nominee in Wisconsin despite the fact the senator initially recommended him. It is unclear why Johnson changed course. Senate Judiciary Committee Chair Dick Durbin (D-IL) slammed Johnson at the time.

However, as the Times makes clear, Durbin could have simply ignored Johnson:

But in fact, there was nothing formal that stopped Mr. Durbin from ignoring Mr. Johnson and proceeding with Judge Pocan’s nomination. There is no rule or law that prevented him from sending it to the Senate floor for final approval. The only barrier was Mr. Durbin’s interpretation of an archaic Senate tradition of courtesy that allows senators to effectively veto federal district judge nominations from their own state for any reason or for no reason at all.

The editorial says using blue slips in this way is “a fundamentally undemocratic practice that gives far too much power to individual senators.” It states that “elections have consequences” and calls on Durbin to end the practice:

It’s far past time for Mr. Durbin to do so. Republicans have worked for years to turn the entire judicial selection process into a proxy war for their ideological goals. Mr. Trump allowed the Federalist Society to pick his judges as part of their crusade to remake the federal courts, and the lack of home-state veto power is one of the reasons the appellate bench now contains so many unqualified and extremist choices.

As the Times notes, blue slips – as they are currently used – are not longtime staples of the upper chamber. Until the 1950s, home-state senators could object to nominees, but not block them outright. That changed after a segregationist Judiciary Committee chairman changed the rules to allow individual senators to thwart nominees, particularly ones who would rule in favor of integration.

But in the 1980s, the editorial says, this was no longer the case. Individual senators could no longer block nominees.

“A home-state senator could raise objections and refuse to return a blue slip, but that would be considered only an advisory opinion by the Judiciary Committee,” the editorial says. “That’s a process that Mr. Durbin should reinstitute.”