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Now that Sen. Lindsey Graham has finally handed the Judiciary Committee gavel over to Sen. Dick Durbin, the Illinois Democrat has issued a warning to his fellow committee members from across the aisle.
“Chair Durbin has said on a number of occasions that there cannot be one set of rules for Republican nominees and another set of rules for Democratic nominees,” a Judiciary aide told Politico. “It’s our expectation that Republicans likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states.”
Translation: We’re not going to enact a retaliatory rules change to jam through judicial nominees the way you guys did in 2017. Yet.
Four years ago, Sen. Chuck Grassley nuked the blue slip procedure, by which home state senators could block federal judicial nominees by failing to return a “blue slip,” for circuit court appointments. Naturally he announced the rule change in a statement denying that he was changing the rules.
“Some of my colleagues and liberal outside groups have accused me of abolishing the 100-year-old blue slip tradition. That’s simply not true. I’m choosing to apply the blue slip policy that most of my predecessors had for the vast majority of this 100-year history,” he said, adding later that it was all Democrats’ fault anyway because “In 2013, the Democrats abolished the filibuster. The filibuster is what allowed senators to enforce the preferences of home-state senators on the Senate floor.”
The senator provided no citation for the historical use of the filibuster to “enforce” home-state preference. He also neglected to mention that his own party had just nuked the filibuster for Supreme Court nominees, after holding Justice Scalia’s seat open for more than a year. Assume shame dead.
But now Democrats control the White House and Senate, so the question is whether they’ll continue Grassley’s practice of allowing blue slip blocks for district court judges, or make them entirely advisory. When Sen. Graham took over as chair, he continued the practice. And Durbin looks to be holding, too, although Politico reports that this might change if Republicans use the procedure to block all Biden’s nominees.
This is a disappointment to progressives, who had hoped that Durbin would play hardball on judicial appointments. But a look at the list of 54 judicial vacancies shows why the chair might be keeping his powder dry for now. After Mitch McConnell’s 226-judge confirmation spree, the vast majority of district court vacancies are in states with two Democratic senators, including three in Connecticut, seven in New York, six in New Jersey, five in Washington, and a whopping 16 in California. If Sen. Tuberville ever figures out what that third branch of government is, he’s only got one nominee left to block.
So for now, the “Grassley rule” stands. Unless Republicans abuse the procedure, in which case … well, fuck around and find out.
Senate Dems take a page from GOP in judicial nominee battles [Politico]
Elizabeth Dye lives in Baltimore where she writes about law and politics.