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Senate Republicans have once more told Joe Biden to pound sand on one of his judicial nominees and, so far, the White House is going with restraint as its response.
Biden aides are refusing to weigh in on whether Senate Democrats should continue to allow Republicans to use a procedural tool to clog the judicial nomination pipeline after Sen. Cindy Hyde-Smith (R-Miss.) said she would not return the so-called blue slip on district court nominee Scott Colom.
“I’ll leave it to the Senate to figure that piece out,” said White House press secretary Karine Jean-Pierre, while restating the White House’s support for Colom’s nomination. She said Hyde Smith was “consulted well in advance” and never raised any objections with Colom’s nomination until this week.
Jean-Pierre’s reluctance to enter the fray of the debate around blue slips is just the latest illustration of Biden’s own deference to Senate procedure. But it comes amid growing agitation among Democrats over the White House’s hands-off approach.
There are currently nearly 40 judicial vacancies that Biden could seek to fill in courts in red states. But the blue slip custom generally dictates that if a home-state senator doesn’t return the blue slip, the majority party halts the nomination.
Republicans moved 17 Trump administration circuit court judges without Democrats’ blue slips, according to Demand Justice, a liberal advocacy group. That was a change from prior practice and now progressives want Democrats to do the same with trial court-level judges.
But Biden has not joined that chorus. Nor has Senate Judiciary Chair Dick Durbin (D-Ill.), who remains noncommittal about moving the Colom nomination in light of Hyde-Smith’s refusal to return a blue slip.
Durbin “is extremely disappointed in Sen. Hyde-Smith’s lack of communication and ultimate obstruction of a highly-qualified nominee,” said his spokesperson, Emily Hampsten. “In the coming days, he’ll be assessing and will respond more fully.”
Durbin previously said he would abide by the blue slip custom unless they were used to block candidates because of their race, gender or sexual orientation. Colom is Black. Mississippi’s other Republican senator, Roger Wicker, returned his blue slip on Colom.
So far, Senate Democrats are generally deferring to Durbin on whether to ignore the blue slip. They are balancing reluctance to further erode Senate norms — including one that Biden as a former Judiciary chair is intimately familiar with — alongside growing frustration with Republican stonewalling. But in certain Democratic quarters on the Hill, there is a growing appetite to see Durbin do away with the custom and a belief that if Biden publicly embraced reform the Illinois Democrat would follow.
While Colom’s nomination is one of the first to be blocked by a blue slip in the Biden administration, it is not the only one. Sen. Ron Johnson (R-Wis.) refused to return a blue slip on district court nominee William Pocan, brother of Rep. Mark Pocan. With Republicans in control of the House, much of Biden’s focus will likely move toward getting nominees through the Democratic-run Senate. And with a growing portion of the judicial vacancies coming in red states, the blue slip issue is likely to grow more prominent.
There are 66 district court vacancies and nearly 40 of them are in states with a GOP senator who could try to block it, according to a tally kept by Demand Justice.
Demand Justice has been calling on Democrats to play hard ball on the nominations, arguing that the “Biden rule” allows them to ignore blue slips. That “rule” is a reference to the policy Biden used when he was Judiciary Committee chair himself following the election of George H.W. Bush. Back then, blue slips were a “significant factor” for the committee but didn’t serve as a de facto veto measure.
“Blue slips have not always been a unilateral veto on judicial nominees, and Chair Durbin should not allow Republicans to wield them in bad faith today,” said Demand Justice Chief Counsel Christopher Kang. “Instead, he should follow Biden’s policy when he was Judiciary chair.”
But there is also some public history — including from not too long ago — of top Democrats insisting that blue slips be respected. Then-Sen. Kamala Harris (D-Calif.) urged the Trump administration to abide by them when the former president was pushing nominees to the Ninth Circuit.
But progressives argue that Republicans themselves have abandoned deference to these customs and it would be foolish for Democrats to not do the same.
“If Durbin does not grant Colom a hearing, he would be abetting Republican obstruction instead of choosing the Biden rule,” Kang said.
