I previously discussed the current outstanding district-court vacancies in red states. Let’s turn to states that include at least one Democrat.
There are three vacancies in New York, two in Massachusetts, and one apiece in Connecticut, New Mexico, Georgia, Maine, Wisconsin, Colorado, and California. Each of these states has one or two Democrats, which means that in order for a nominee to get a hearing he or she would need those Democrats to return positive blue slips to Chairman Chuck Grassley. There are currently nominees for vacancies in Michigan and Pennsylvania. As to the latter at least, Senator John Fetterman has said he’s returning a blue slip. The liberal NKVD that is Demand Justice has announced they’ll run ads against him for it. Once they do that, I think it’s a safe bet that other Democrats won’t follow Fetterman’s lead.
This is unfortunate because many of these courts could use some sane judges. New Mexico, Massachusetts, the Western District of Wisconsin, and Colorado are all particularly benighted and in need of competent jurists.
I have been a staunch defender of blue slips. Senators have obligations to their states, and Judiciary Committee nominations are uniquely state-based. It’s a good thing that senators can veto unfit picks. The problem is that the situation has moved beyond vetoing candidates to more and more senators simply saying there will be no picks if the other party controls the White House.
Both sides have done this. It was arguably pioneered by Senator Jeff Sessions in Alabama under Barack Obama. But over the years there have been two approaches. Some senators play ball — the Illinois and Texas delegations are the best examples — while others just say pound sand — again, Alabama has done this, as has Missouri in recent years among Republicans, while New Jersey and Massachusetts were the biggest offenders among Democrats. There’s reason to worry that the latter approach will become the norm, at least for Democrats.
It’s an untenable position both for the country and for the Senate’s prerogatives. It just can’t be the case that, over time, every red state only has Kacsmaryks while every blue state only has Talwanis. (For one thing, we shouldn’t have confidence that Republicans would actually fulfill their side of this bargain!) Eventually one party is going to get fed up and blow up the blue slip once its leader is confident that he can muster 50 votes to confirm such a judge. That would be very bad.
My hope this time last year was that the sensible Democrats would self-regulate. In the past Senator Chuck Schumer has agreed to 2-for-1 deals in New York. Well, there are three vacancies in New York. Where’s the deal? With Alexandria Ocasio-Cortez breathing down his neck with Demand Justice not far behind, it won’t be forthcoming.
So the question is whether there’s a way to preserve the important veto function senators serve while not allowing that veto of bad nominees to convert into a veto of all nominees.
I think there’s a way to do this. In the end the blue slip process is a prerogative of the Judiciary Committee chairman. Dick Durbin, when he was chairman of the Judiciary Committee under Joe Biden, already announced that he’d respect blue slips as long as it was being used “in good faith.” This “Durbin Rule” gives the chairman authority to adjudicate blue-slip negotiations. Republicans should consider embracing the principle of adjudication.
Good faith is an appropriate standard. The reason the blue slip veto is important is because the White House won’t negotiate in good faith unless senators can stop picks cold. Power, in the end, is the ability to stop something.
My friend, Rob Luther, likes to argue that the blue slip should just be a consultation requirement but not a veto, but that’s just giving the White House a total say. It’s what Republicans did with the circuits, and out-party senators are left to pound sand unless they have the savvy to deprive the president of a majority to confirm the nominees — like Thom Tillis did when Biden tried to force Ryan Park on him for the Fourth Circuit. Given the multistate jurisdiction of circuits, it’s the correct system to have in place.
The problem here is that out-party senators, with their vetoes, have no incentive themselves to negotiate on district courts. If they won’t get rolled, why should they negotiate? In other words, while their notional veto power needs to be respected, the White House needs to be able — at some point — to steamroll them, or they won’t cut a deal.
There are a couple ways to do this in practice. One possibility is to model a process on that used by agencies like the Federal Trade Commission in appointing monitors: required exchanges of names on strict timelines with shifting presumptions.
Let’s say there’s a new vacancy in San Francisco. The chairman could establish a rule that within 60 days of the announced vacancy the White House must have sent the California senators names and they must be interviewed. Objections to selections must be conveyed in writing. If agreement isn’t reached on those names, then the senators send names to the White House, to whom they have to object in writing. The process continues along these lines for another two 30-day windows. If, after that, there’s still no consensus, then the chairman reserves the right to give the president’s nominee a hearing. At some point, the music stops.
A process like this puts the gun on the table and encourages actual negotiation from Democrats. At the same time, the chairman retains discretion, so if the White House just keeps suggesting Bill Pulte–style picks to run out the clock, the chairman doesn’t need to accept that as a fair negotiation.
Of course the same basic principle could be applied without timelines and procedures on an “I know it when I see it” standard employed by the chairman. But an actual process is likely to be perceived as fair by the moderate senators on both sides necessary for such a system to work.
The danger is that this puts the decision in the hands entirely of the chairman, which is not great for the chairman. Grassley is under perpetual fire from the MAGA right for not waiving a magic wand to get the likes of Alina Habba confirmed. (And woe betide any Republican who presides over a pro forma.) For this system to work well and not devolve into a rubber stamp for the White House, the chairman needs to be a good-faith broker between both sides. That will undoubtably anger his party’s base when he forces actual negotiation and respects a legitimate veto as to persons while preventing an illegitimate veto as to the vacancy writ large.
Leadership is hard, and heavy is the head that wears the crown — or in this case, the hand that wields the gavel. The efficient management of our courts will require leadership that is willing to stand up both to the White House and to obstinate Democrats. The fact is that the system used to work in the past, and there’s no reason it can’t in the future if the committee’s chairman is willing to make it work while taking the attendant abuse.
Chairman Grassley should consider this, although the clock is ticking. If Republicans hold the Senate, Chairman Lindsey Graham should absolutely consider it. Again, it’s not new: It’s the Durbin Rule establishing that the chairman has discretion. That discretion should be employed to force actual bargains that fill seats.
Neither the president nor Democrats will get everything that they want, but — if done right — the seats will be filled, and senators will be able to prevent specific nominees to whom they have particular objections. This would be significantly better than the district-court gerrymander into which the Senate is currently stumbling.