Senate Democrats need to play hardballSenate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) seems spectacularly ill-suited for an era when democracy is at risk, when Republicans observe no rules of decorum and when the federal judiciary’s credibility is crumbling.
Far too restrained and deferential, Durbin has refused to alter practices such as the “blue slip,” which allows home-state senators to nix the president’s judicial nominees, although he has beseeched Republicans not to abuse the practice. Durbin also hasn’t yet conducted hearings on the disastrous effects of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization and related abortion bans, nor has he held hearings on a mandatory ethics code for judges — although he has promised hearings on revelations about Justice Clarence Thomas’s failure to disclose luxurious travel gifts and real estate sales. Then again, Senate Democrats as a whole haven’t pushed Durbin, so one cannot blame him alone for his timidity.
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.
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.
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.
This is what the fall of democracy, inconvenient truth and civil liberties looks like when their defenders do not fight as hard as they can. One can reasonably ask the question, which side is the Democratic Party on? Arguably, it's quietly on the side of the corrupt authoritarians or it's on no side at all.
