"We're not at that point": Dick Durbin says he'll let Republicans continue to veto Biden judge picks

Top Judiciary Democrat not ready to let go of archaic Senate blue slip tradition

Published April 19, 2023 5:01PM (EDT)

Chairman Dick Durbin (D-IL) arrives for a US Senate Judiciary Committee oversight hearing on Capitol Hill in Washington, DC, on March 1, 2023.  (STEFANI REYNOLDS/AFP via Getty Images)
Chairman Dick Durbin (D-IL) arrives for a US Senate Judiciary Committee oversight hearing on Capitol Hill in Washington, DC, on March 1, 2023. (STEFANI REYNOLDS/AFP via Getty Images)

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The Democratic chair of the Senate Judiciary Committee said Tuesday that he is not ready to ditch the arcane tradition that has given individual Republican lawmakers veto power over nominees for federal court seats in their home states.

"We're not at that point yet," Sen. Dick Durbin, D-Ill., told HuffPost when asked if he's considering scrapping the so-called "blue slip courtesy"—a non-binding rule that Republicans tossed aside for circuit court nominees when they last controlled the Senate.

When a senator returns a blue slip, they are indicating they will allow a judicial nomination to proceed. Earlier this month, Sen. Cindy Hyde-Smith, R-Miss., announced she would not be returning a blue slip for Scott Colom, who President Joe Biden nominated to serve on the U.S. District Court for the Northern District of Mississippi.

But Hyde-Smith's decision, which effectively tanked Colom's nomination even though he had bipartisan support in the Senate, wasn't enough for Durbin to abandon the blue slip process—though he said earlier this week that "her conduct and the timing of her decision have made it extremely difficult" to preserve the tradition.

On top of the extended and indefinite absence of Sen. Dianne Feinstein, D-Calif., Durbin's continued adherence to the blue slip rule has allowed Republicans to dramatically slow the judicial confirmation process, leaving open dozens of vacancies as right-wing judges they've approved in recent years wreak havoc across the country.

In remarks during a Senate Judiciary Committee hearing on Tuesday, Durbin said the blue slip process "has a long history, but there have been instances of success and failure."

"We have an illustration of success today," Durbin said, noting that three Biden nominees received blue slips from senators who represent their home states, including Sens. John Kennedy, R-La., and Bill Cassidy, R-La.

But as HuffPost's Jennifer Bendery noted, Durbin "has so many reasons to nix" the non-binding rule, something he can do unilaterally.

"Democrats returned more than 130 blue slips during the Trump admin, confirming 84 district judges in states with at least one or two Dem senators," Bendery wrote on Twitter. "More than two years into the Biden admin, Republicans have returned 13 blue slips. That's as of last month."

"Progressive judicial groups are practically shouting from the mountaintops to ditch blue slips," Bendery continued. "Republicans did it for years with Trump's court picks, as Dems fumed from the sidelines. The result? Trump confirmed a massive [number] of right-wing ideologues to lifetime court seats."

Chris Kang, the chief counsel for Demand Justice, told Bendery that if Durbin refuses to "reform the outdated blue slip tradition," he is endorsing "the worst kind of extreme Republican obstructionism."

The Senate Judiciary Committee is expected to consider 13 Biden judicial nominees during a hearing scheduled for Thursday.

Durbin said during Tuesday's hearing that he hopes Republicans and Democrats on the judiciary panel can "try to find common ground," remarks that came shortly before the GOP blocked Democrats' request to temporarily replace Feinstein on the committee as she recovers from shingles.

Sen. Lindsey Graham, R-S.C., objected to Senate Majority Leader Chuck Schumer's, D-N.Y., unanimous consent request to replace Feinstein with Sen. Ben Cardin, D-Md., saying, "This is about a handful of judges that you can't get the votes for."

Rep. Ro Khanna, D-Calif., who has urged Feinstein to resign, said in response to the GOP's obstruction that "the ball is now back in Senator Feinstein's court to provide a specific timeline of when she can cast votes on judiciary to confirm President Biden's judges."

"Every day she is not on judiciary is hurting our ability to confirm another judge who will protect women's rights and voting rights," Khanna told NBC News. "I hope more will choose democracy over decorum and speak out about what is painfully obvious. It's time for Sen. Feinstein to step aside to have a dignified conclusion to her public service career."

By Jake Johnson

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