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Dear Senator Durbin, It’s Time to End the “Blue Slip” for Judicial Nominees

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Greetings, Senator Durbin! Like you, we’re native Illnoisans – one of us is still a constituent – and we write to congratulate you on your two years of chairing the Senate Judiciary Committee, one of the most powerful Committees in all of Congress. Among the Judiciary Committee’s significant duties is vetting presidential nominees for appointment to the federal bench, including the District Courts, Courts of Appeal, and the Supreme Court – a process that both of us have studied in detail.

Speaking of presidents, while you’ve led the Judiciary Committee, you’ve helped President Biden outpace his two most recent predecessors in total appointments to the District Courts and Circuit Courts of Appeal. With the Senate’s advice and consent, the president has appointed a highly qualified cohort of trial and appellate judges with unprecedented diversity in their personal demography and professional careers.

And – bonus! – you’ll lead the Committee for two more years, because Democrats preserved their Senate majority, enlarging it just enough to allow committee structure to change from 50-50 membership to majority Democratic membership. So, we hope that, over the next two years, the Judiciary Committee and the Senate will continue to confirm president Biden’s judicial nominees to the federal courts at the brisk rate we’ve seen so far.

Of course, we understand that there’s a hard numerical cap on how many nominees the Senate can confirm in any given presidential term: there are only about 800 seats on the federal bench and, historically, the turnover rate is relatively slow – approximately 40-50 judges per year. Unless Congress creates additional judgeships (which is probably not going to happen in this divided Congress), we hope the president will appoint another 80-plus District and Circuit judges over the next couple of years, and, perhaps, a Supreme Court Justice or two (also probably not going to happen, but also not impossible).

Removing the “Blue Slip” Process

That would be great, but you might be leaving a lot of vacant judgeships on the table because of a self-imposed soft cap on federal judicial selection: the “blue slip.” It’s time – long past time – to get rid of the “blue slip.” 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.

But unlike the filibuster, the blue slip process is something you, Senator Durbin, control unilaterally. Previous Judiciary Committee chairs have used the blue slip process strategically for political gain. Senator Grassley required two blue slips for President Obama’s judicial nominees, but required just one for the judges President Trump nominated. To be clear, we are not asking you to use the blue slip unfairly – but rather to abandon the anti-democratic process entirely.

The Blue Slip Process is Anti-Democratic

Because federal judgeships are powerful participants in making – or breaking – federal, state, and local public policy, Senators understandably want judges whose views on the Constitution and government powers and duties reflect their own. As a result, there are dozens of District Court vacancies for which there are no nominees because they’re in States with one or more Republican Senators who don’t want judges nominated by a Democratic president and confirmed by a Senate Democratic majority.

Notwithstanding Senator Mitch McConnell’s recent eyewash about appointing only the “finest legal minds” to the federal bench, the judicial-selection process is really about shaping, if not actually controlling, policy-making in the country, from the Affordable Care Act, through abortion, gun-control, environmental protection, church-state separation, and just about any other subject of public policy anyone can imagine. And the senior Senator from Kentucky played relentless hardball on federal judicial selection during the Trump administration, leading to the appointment of, among others, Judge Aileen Cannon, who sits on the Southern District of Florida.

Judge Cannon is a Trump appointee with a very short professional resume who briefly unhorsed the criminal investigation of Trump’s illegal possession and retention of government documents on the novel theory that a federal civil suit could enjoin a federal criminal investigation because the subject under investigation is an ex-president. (Spoiler: it can’t, as the 11th Circuit made abundantly clear in ordering Judge Cannon to dismiss Trump’s civil suit to enjoin the criminal investigation).

Judge Cannon’s legal creativity allows us to highlight one of the worst consequences of the blue-slip. If federal trial judges are going to be appointed only on a hyper-partisan basis (assuming Republicans continue to honor the blue-slip process if they retake control of the Senate or the White House in 2024), we can confidently predict more, rather than less “forum-shopping” in the future. Forum-shopping occurs when litigants intentionally file their federal lawsuits in a particular District, which they can predict will be populated with judges friendly to the broad content of their legal arguments. If forum-shopping intensifies, then we can expect that the public’s perception of the legitimacy of the lower federal courts will fall precipitously, like the ongoing nose-dive in credibility suffered by the Supreme Court, and for the same reasons.

We understand that getting rid of the blue slip means that a President and a cooperative majority in the Senate probably will be able to appoint federal District Court judges whenever and wherever vacancies arise. And ending the blue slip also will allow, or possibly oblige, the “world’s greatest deliberative body” to actually deliberate on more nominees, with greater transparency. That’s what the Constitution expressly enables, and it’s good for the country as well.

IMAGE: Police officers stand in front of the U.S. Supreme Court building during the 50th annual March for Life rally on Jan. 20, 2023, in Washington, D.C. (Photo by Anna Moneymaker via Getty Images)

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