The New York Times reports that President Biden and Senate Democrats “have made fresh headway in advancing judicial nominees in states represented by Republicans.” Senate Judiciary Committee chairman Dick Durbin sensibly observes (in NYT’s paraphrase) that this success “should quiet demands to dump the blue slip”—the “blue slip” being the committee practice that enables home-state senators to block district-court nominees in their states. But “progressive activists say he should still end the practice” so that Biden can match the number of judges appointed by President Trump. They also “predict that Republicans will steamroll Democrats [by abolishing the filibuster for district-court seats] if they regain the Senate majority and White House.”
In an ill-informed op-ed, David Firestone, deputy editor of NYT’s editorial board, repeats the progressive activists’ demands. The single reason, he asserts, that Biden will not match Trump’s 234 appointments, is “because Republicans have [via the blue slip] blocked or slow-walked Biden’s choices.” Firestone also charges that Durbin is clueless:
[H]ere’s the reality everyone but Durbin seems to know: Trump and his allies aren’t going to honor that [blue-slip] tradition, even if Democrats preserve it for now. If he wins, he and his movement will muscle through all the judges they want.
But it’s Firestone, not Durbin, who doesn’t know what he’s talking about:
1. If Biden doesn’t match Trump’s total of judicial appointees—NYT says he’s 63 short—the biggest reason will be that Trump started his presidency with far more judicial vacancies than Biden started his. There were 127 vacancies (existing and declared “future”) in January 2017, when Trump became president. There were only 54 vacancies (existing and “future”) in January 2021, when Biden became president.
In other words, Trump had 73 more vacancies to fill from the outset than Biden did—10 more than the current gap between the number of Trump’s appointees and the number of Biden’s—so there’s no need to struggle for an explanation why Trump is likely to end up with a higher number of appointees.
2. The Trump White House encountered massive obstruction from Senate Democrats who wielded the blue slip. That’s why, for example, it was unable to fill twelve district-court vacancies in California, six in New Jersey, five in Washington state, and two in Massachusetts.
In other states with two Democratic senators, the Trump White House had to strike deals to get nominees through. In New York, for example, Democratic senator Chuck Schumer extracted a deal in which he could name one of every four district-court nominees. If you think Lewis Liman and Diane Gujarati were the White House’s choices, you’re not paying attention. Durbin himself struck a similar deal in Illinois and picked Mary Rowland (whom he had previously recommended to President Obama) for a seat. In Michigan, the White House gave Michigan senators free rein to select Stephanie D. Davis (whom Biden has elevated to the Sixth Circuit). There are plenty of other examples.
So in stating that Trump appointed “234 conservative-leaning jurists,” the NYT article is blind to the basic reality of how Trump had to work to accommodate the blue-slip power wielded by Democratic senators. Firestone likewise shows no awareness of this.
3. Firestone’s ignorance of what happened during the Trump years makes possible his wildly overconfident assertion that “Trump and his allies aren’t going to honor” the blue slip in a second Trump term. So does his ignorance of why the blue slip for district judges arose a century ago and has been sacrosanct ever since.
Firestone calls the blue slip “archaic,” and the NYT article labels it a “quirky Senate custom.” But senators across the ideological divide have a special interest in who sits as district-court judges in their states—a much stronger interest than they have in who sits as appellate judges. As I’ve explained:
If there is a single point that all senators could agree on, it is that no senator should have his political enemy preside over his corruption trial. More broadly, federal law assigns district judgeships to districts in particular states, and the work of a federal district judge, especially in the criminal docket, predominantly relates to the state in which the judge sits.
By contrast, federal law does not assign a circuit’s seats by state…. The work of a federal appellate judge has no special connection to the state in which the judge’s chambers happen to be located. Appellate judges from different states in the same circuit take part equally in the cases arising from the district courts across those various states.
I’m no fan of an expansive blue-slip practice. But I doubt very much that the Senate will ever demote or abolish the blue slip for district-court nominees. Perhaps I’ll turn out to be wrong. But Durbin understands the Senate far better than Firestone does.