Blue Slips
Opinion

Blue Slips and the Appellate Courts

As Senate Majority Leader, Mitch McConnell had one main goal: pack the courts with conservative judges and block anyone else. Indeed, his proudest moment was being the chief obstructionist behind current Attorney General Merrick Garland’s failed 2016 confirmation to the Supreme Court.

Yet, McConnell’s rush to confirm conservative judges gave President Joe Biden a huge win. Due to a change in a little-known Senate tradition — the blue slip process — Biden has had his judicial nominees confirmed at a faster pace than any first-year president since 1981.

Normally, when a person is nominated to a federal judgeship, their home-state senators are allowed to wield veto power in the form of a blue slip. Returning a positive blue slip to the chair of the Senate Judiciary Committee effectively constitutes their consent. If the slip is not returned, the nomination is torpedoed. 

However, beginning in 2017, this process was eroded by Sen. Chuck Grassley, R-Iowa, and his successor as chairman of the Senate Judiciary Committee, Lindsey Graham, R-South Carolina. They overrode Democrats who objected to genuinely terrible judicial nominees, including those who were hand-picked by the radical right Federalist Society.

Ten of those nominees were also objectively unqualified according to the nonpartisan American Bar Association, based on their ratings. Yet, Republicans rammed them through the Senate as they insisted on packing the courts.

This was, and remains, part of “The Scheme” exposed by Sen. Sheldon Whitehouse, D-Rhode Island. “The Scheme” was a campaign backed by dark money — funneled by Republicans and their corporate allies — to take control of the federal courts, including the Supreme Court, and win favorable rulings.

Federal judges, with few exceptions, hold lifetime appointments. Their opinions hold enormous weight and may be a binding precedent for generations. Confirming federal judges is thought to be the Senate’s most important power; McConnell realized this. Now his decisions are coming back to bite him.

Presently in Congress, Judiciary Committee Chairman Dick Durbin, D-Illinois, has decided to continue his Republican predecessors’ decisions, doing away with a great deal of bad-faith Republican obstructionism.

Now, it is worth noting two things: 1. This erosion of the blue slip process only applies to the powerful appellate courts, just below the Supreme Court in standing. District courts still stick by the blue slip norm, and 2. This erosion of Senate norms regarding judicial nominees has spanned decades, beginning with the failed 1987 confirmation of arch-conservative Robert Bork to the Supreme Court. 

This accelerated in the early 2000s when Senate Democrats began to use the filibuster to block federal appellate court nominees for the first time. This came after George W. Bush’s administration ceased to use the American Bar Association’s rating on judicial nominees and attempted to ram through several unqualified nominees.

Then, in 2013, then-Senate Majority leader Harry Reid, D-Nevada, invoked the ‘nuclear option.’ This removed the filibuster for all but Supreme Court nominees to prevent Republicans from blocking all of former President Obama’s nominees. 

Later, in 2017, McConnell removed the filibuster for Supreme Court nominees. This enabled him to fill three seats in highly contentious battles. McConnell also proceeded to pack lower courts (the real court-packing) with conservative judges at a rapid clip, aided by Grassley and Graham’s decisions.

This has paved the way for Senate Democrats’ continuation of these objectively highly effective policies. Recently, Durbin shepherded the nomination of Andre Mathis of Tennessee to serve as a judge for the Sixth Circuit Court of Appeals out of committee and toward a full Senate vote. This is despite the objections of his Republican senators, Bill Hagerty and Marsha Blackburn.

Blackburn in particular attacked Mathis over a “rap sheet with a laundry list of citations.” The laundry list turned out to be three traffic tickets in a state where black drivers, like Mathis, are more likely to be pulled over by the police. 

Blackburn has also complained that Biden did not consult them before announcing his judicial nominees. Yet, as Zack Ford, press secretary for the Alliance for Justice, put it in a statement to the Florida Political Review, “Senate Republicans voted 17 times to confirm appeals court judges over the objections of Democratic home-state senators” when Trump was in office. Blackburn herself voted to confirm many of those judges.

Alliance for Justice is a progressive judicial advocacy group trying to make sure Biden gets his chance to fill the courts with those who will do their jobs well and with integrity. 

Ford said, “We are eager to see all of the remaining judicial vacancies filled this year, and we see no reason why Senate Democrats shouldn’t play by the same rules established by their Republican colleagues for the confirmation process.”

In other words, Republicans wrote the rules, and now they must play by them, too. The political affiliation of the president should not impact convenient feelings of selective Republican righteousness.

How does this apply to Florida? Judge Charles R. Wilson is a Floridian on the 11th Circuit Court of Appeals (the circuit Florida shares with Georgia and Alabama). He can take senior status at any time, putting him into a form of semi-retirement. Appointed by former President Bill Clinton, he may want another Democratic president to choose his successor if he takes senior status or retires outright. Any replacement will likely be a Floridian.

Florida has two Republican senators – Rick Scott and Marco Rubio – whose extremely partisan scorched-earth tactics have meant very few Biden nominees, judges or otherwise, have been able to win a “yea” vote from Rubio or Scott.

So, we are not far away from a scenario where Biden nominates a replacement for Wilson or any other 11th Circuit Court of Appeals judge (if a seat is vacated) from Florida. Recent blue slip reforms would mean Rubio or Scott would be unable to block confirmation. If Democrats hold the Senate this year, we could see this scenario play out in 2023 or 2024. 

Soon Florida could very well have a new federal appellate court judge, and blue slip reforms could be the reason why.

Check out other recent articles from Florida Political Review here.

Featured image: The Elbert P. Tuttle United States Court of Appeals Building in Atlanta, Georgia, seat of the 11th Circuit Court of Appeals. Image by Charles Horowitz.

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