Democrats face a tough choice to confirm red state judges: Go through GOP senators or right over their heads

• Senate Democrats want to ramp up the pace of federal judge confirmations this Congress.
• But their task could grow challenging when it comes to filling vacancies in states with GOP senators.
• By tradition, senators have essentially a veto power over district court nominees in their home states.

Senate Democrats are vying to confirm more of President Joe Biden's nominees to the federal bench after he broke his recent predecessors' records for judges appointed in their first two years in office. 

"This Congress, with an even larger majority, Senate Democrats will ramp up to a record pace and continue to make our courts more reflective of our country," Senate Majority Leader Chuck Schumer said in a statement to Insider.

But even with a 51-seat majority, the task for Democrats could grow challenging as many of the 88 open judgeships — a number that's expected to rise with new retirements — will require cajoling support from Republican senators, or jettisoning a century-old Senate practice that empowers them. 

By tradition, senators essentially have a veto over district judge nominees in their home states. Almost a third of the current vacancies are in states with at least one GOP senator, who could block some of Biden's choices.

"I will not hesitate if I don't think they ought to be on the federal bench," GOP Sen. John Kennedy of Louisiana, where there are four district court vacancies, told Insider.

Biden has repeatedly expressed a strong commitment to reshaping the federal courts after former President Donald Trump dramatically shifted the judiciary to the right. Democrats see judicial confirmations as a defense against GOP attempts to repeal the Affordable Care Act, weaken gun restrictions or curtail voting rights through the bench.

"One of the really important things about having a balanced federal judiciary is ensuring that some of these awful, unpopular, radical things that the Republicans are trying to implement through the courts aren't just sailing through," said Justin Goodman, Schumer's former communications director who is now an executive vice president at the public affairs firm SKDK.

Yet if Republicans balk at Biden's nominees, Democrats will face increased pressure from the left to bury the Senate's judicial-approval tradition to cement the president's legacy on the bench. 

Both Senate Judiciary Committee Chair Dick Durbin, and the panel's top-ranking Republican, Sen. Lindsey Graham, are hoping it won't get to that point. 

"I'm not asking anybody to capitulate," Graham said during a committee meeting last week. "I'm asking people to cooperate. And I'm hoping we can find some system that works." 

Judicial vacancies in Republican-led states

Since Biden became president, he's appointed nearly 100 federal judges — more than Trump and President Barack Obama did in their first two years, according to the Federal Judicial Center. Biden's nominees increased diversity on the historically homogeneous courts, most notably with the ground-breaking confirmation of Ketanji Brown Jackson, the first Black woman on the Supreme Court.

"Both, in terms of ethnicity, gender, and sexual orientation, and experience, no one has topped him. I mean, no one's even close," Carl Tobias, a professor at the University of Richmond School of Law, told Insider.

Now in a divided Congress, the table is set for Democrats to accelerate the pace of confirmations. The Senate, alone, confirms judicial nominees, and Democrats are expecting ample opportunity to focus on them since Republicans control the House and major legislative activity is less likely. The party is aiming for a year like 2019, when the GOP-led Senate confirmed 102 of Trump's nominees to the bench after Democrats won the House.

But the Senate Judiciary Committee's long-standing "blue slip" tradition could complicate Biden's plans to transform the courts over the next two years. When considering district court vacancies, senators from that home state must return a blue sheet of paper, with lines that say "approve" and "disapprove," for a nominee to receive a hearing and move forward in the confirmation process. 

The process, started in 1917, is meant as a courtesy to home state senators and to fulfill the president's "advice and consent" constitutional obligation of the Senate. 

With GOP hostility toward Biden's agenda and signs of hyperpartisanship in the Senate, he's so far largely avoided potential blue-slip fights by nominating circuit court judges — who sit on one of 13 courts that hear challenges of district court decisions and whose nominations do not require blue slips to advance — and district court judges in states represented by his party. A senator can derail an aspiring federal judge simply by refusing to return the slip.

Democrats confirmed 28 circuit court judges and 68 district court judges in Biden's first two years. Of the district court judges, the majority were in states with Democratic senators and only one nominee was confirmed in a state with two Republican senators: Iowa.

"President Biden's gonna have a tougher time filling district court slots over the next two years because he's already picked the low-hanging fruit of filling district court slots with two Democrat home state senators," said Mike Davis, who previously served as chief counsel for nominations to former Senate Judiciary Chairman Chuck Grassley, an Iowa Republican.

Biden, a former Judiciary Committee chair himself, could continue to prioritize and appoint judges in Democratic-led states, which he's widely anticipated to do. But if Democrats want to make good on their promise of restoring balance to the courts, experts say they must place judges in red states, where there are currently 28 open district court seats, including in Texas, Florida, Idaho and Wyoming. The sole pending nomination for those vacancies is in Mississippi.

"The real difference will come when you replace the Republican appointees with a Democrat who has very different experience and different views ideologically," Tobias said. "[Biden] needs to get more of those." 

'Antiquated blue slip process'

Durbin, as judiciary chair, has the power to change the informal, blue-slip practice for district court confirmations, but committee staffers said it's premature to discuss that option. 

At the moment, the top Democrat is reminding Republicans that his party returned 130 blue slips for district court nominees under Trump, including many in the second half of his administration. Democrats are hoping their GOP colleagues will do the same now that the roles are reversed. 

"It can be done if you're willing to sit down and be reasonable on both sides of the table," Durbin said during a committee work session. 

—Senate Judiciary Committee (@JudiciaryDems) January 25, 2023

Besides Graham, other Republicans senators have worked across the aisle on judicial confirmations. Durbin recently praised Sens. Mike Braun and Todd Young of Indiana for returning blue slips on Judge Matthew Brookman for a district spot in their home state, signaling a smooth confirmation process ahead.

Yet although some Republicans are cooperating, Durbin said, "so far we've only received 12 blue slips in the first two years from the Republican side."

And some GOP members have threatened to withhold their support. 

Kennedy, the senator of Louisiana, successfully negotiated with Democrats on confirming a circuit court nominee last Congress. But he said the White House "hasn't seemed to be in a real big hurry on the district court appointees." 

"We have discussed some names, but the names that the White House has sent to me, I'm not going to support and they know that," he told Insider. "I'm not looking for activists or ideologues. I'm looking for good lawyers who will make good judges."

Sen. John Cornyn of Texas also griped that the White House has delayed talks on judicial nominations.

"We would like to maintain some cooperation and communication with the White House and certainly we're not doing anything to slow this down," he said in last week's committee meeting. 

Durbin, seemingly trying to assuage Cornyn's concerns, responded at the time: "It is definitely a two-way street. We're asking members to try to cooperate but certainly the White House has to do the same."

The White House has insisted that its goal is to consult with all senators of both parties to fill judicial vacancies in the remainder of Biden's term. And while the administration could win over some hesitant Republicans, at least one has already opposed a Biden nominee. GOP Sen. Ron Johnson of Wisconsin initially approved Judge William Pocan for the state's eastern district court, but then walked back his support, denying a blue slip and preventing him from advancing.

Despite Durbin's pleas for bipartisanship, progressive advocacy and legal groups, who have celebrated Biden's record on the federal courts, aren't holding their breath that GOP senators will come around. 

"It's time for the Senate to do away with the antiquated blue slip process, which is letting Republican senators tell President Biden who can and cannot become a judge," Christopher Kang, chief counsel at Demand Justice, said in a statement to Insider. 

"With fewer and fewer vacancies remaining in blue states, President Biden needs to be able to appoint judges in red states to maximize his judicial legacy so Americans across the country will benefit from a diverse judiciary," he added. "For him to do that, he needs Chairman Durbin to have his back."

Biden's 'partial legacy' 

The blue-slip tradition has been a source of headaches for both Republicans and Democrats. The Obama White House voiced frustrations with the custom in 2014, when Democratic Sen. Patrick Leahy chaired the committee, because they thought Republicans were exploiting it by blocking nominees or using delay tactics. 

"This abuse is a significant constraint on the president's selection of potential nominees and on his ability to quickly nominate individuals to fill long-standing vacancies," Eric Schultz, then the White House deputy press secretary, told Gannett at the time.

Leahy required two positive blue slips from home-state senators for both circuit and district court nominees to advance. His successor, Grassley, however, announced a different standard for circuit court nominees during the Trump administration, saying a lack of two positive blue slips wouldn't prevent a nominee from getting a hearing unless the White House failed to consult with home state senators. Graham, who followed Grassley, imposed a similar policy and, now, so does Durbin. 

It's a powerful tool that senators don't want to lose.

The blue slip is "the last thing pretty much left that makes senators very relevant" in the district judge nominating process, according to Graham, who chaired the committee from 2019 to 2021. He felt pressured to change the rule so Republicans could fill any vacancy they wished, and he warned that Durbin would now feel the heat from Democrats.

"I think it's important we keep it," Graham said.

The South Carolina Republican acknowledged that Democrats joined forces with Republicans when he was chairman, even if vacancies remained in three blue states under Trump and not many were filled in California. Graham encouraged his fellow GOP senators to create a process that would allow nominations to advance "in a reasonable fashion."

Durbin has not yet signaled any urgency to abolish the tradition. But in the coming weeks and months, if Democrats fail to place judges in red states because of GOP holdouts, the party must decide whether to abandon blue slips to satisfy their agenda before Biden's term ends.

Rakim Brooks, president of Alliance for Justice, a left-leaning legal policy coalition, cautioned against Republicans blocking nominees in their home states and slowing down legal action in different parts of the country. "That just seems fundamentally unfair," he said.

Brooks fears that Biden will leave only a "partial legacy" on the courts if Democrats fall short on this responsibility and continue to honor blue slips. Though he has faith that the party will make the right decision in the face of Republican opposition.

"I think they'll come around, ultimately, to seeing that what they're aiming to do just ultimately proves to be impossible," Brooks said.