The Democrats must really think they are going to lose in November. Senate Judiciary Committee Chairman Richard Durbin has proposed a deal to reinstate the blue slip as a potential bar to circuit court nominations—applied prospectively, so long as it is agreed to by members of both parties before election day.
The blue slip tradition has existed for over a century, but contrary to the revisionist history advanced by flip-flopping Democrats during the Trump administration, the norm for most of that time was not to treat the failure of home-state senators to return positive blue slips like a virtual veto that would prevent the Judiciary Committee from considering a circuit court nominee. Blue slips for district court nominees, whose jurisdiction would not exceed a single state, have been a different matter, but even there, Durbin has faced considerable pressure from fellow Democrats and activists to disregard red-state senators who do not return their blue slips. It is not a smart bet that a future Democratic committee chairman would continue to resist that pressure.
The reality is that Democrats have been quite willing to defy norms to get their way and to later do an about-face on their own position. Twenty years ago, Democrats were engaging in filibusters of President George W. Bush’s circuit court nominees and threatened to freeze Senate business if Republicans were to lower the 60-vote supermajority requirement to end filibusters to a simple majority. In 2005, the “Gang of 14” stepped in to push a compromise as an alternative to a rule change. But eight years later, when the Democrats had the White House and control of the Senate, the same senators who had railed against Republican threats to change the rules pursued those changes themselves, ending the virtual supermajority-vote requirement for nominations other than the Supreme Court. They could not convincingly cry foul when Republicans in 2017 essentially extended that rule change to the high court while Democrats filibustered Neil Gorsuch’s nomination. Senate Democrats are not exactly master political tacticians.
During the Biden administration, the Democrats have confirmed four circuit judges over home-state Republicans’ objections, and they are on track to confirm four or five more. Whom do they think they are kidding with Durbin’s proposal? They expect this move would translate into allowing their senators to hold up Republican circuit nominees in their home states during an imminent Republican administration. Meanwhile, the broader Democratic Party has embraced ending the legislative filibuster as their goal and attacked Senators Kyrsten Sinema and Joe Manchin for refusing to go along with them. Both members’ Senate careers are not surprisingly about to come to an end while their Democratic colleagues hypocritically reversed their past support for the legislative filibuster, which they had voiced during their years in the minority.
Senator Durbin was one of those flip-flopping Democrats, and Senator Chuck Grassley charged that the Illinois senator “has now joined the crusade of his Democrat predecessor, Stephen Douglas of Illinois,” the famed Democratic opponent of Abraham Lincoln, who had favored “allowing a narrow majority to force a final vote on bills.” By contrast, Senator Mitch McConnell resisted calls to go down the same road when he was majority leader and a Republican was in the White House. A future slim Democratic majority can be expected to kill the legislative filibuster in an attempt to railroad through the Senate bills to nationalize no-limits abortion on demand, federalize election law, and pack or otherwise bully the Supreme Court under the pretext of “ethics reform” among other agenda items of the Left.
The blue slip proposal is a self-interested election-year gambit that has the added benefit of diverting attention from the antics of the Senate’s institutional arsonists. Hopefully, Republican senators will not fall for it. If Senate Democrats want to propose something meaningful, how about an apology to their soon-to-be-former colleagues Manchin and Sinema and a repudiation of their scheme to get rid of the legislative filibuster? That would mean more before the election than afterwards, when the Democrats are likely to return to minority status and make a double flip-flop that would then serve their far-left agenda.