Durbin still can't quit blue slips, so the judiciary will continue to suffer

President Joe Biden has appointed—and, as of of Jan. 31, the Senate has confirmed—174 federal judges to fill the country’s district courts and circuit courts of appeal, according to Ballotpedia. There are still about 60 current vacancies. That’s not a bad record; Donald Trump ended up with 234 appointments during the abominable four years he occupied the Oval Office.

Now the bad news: The vast majority of those confirmed judges hail from states with two Democratic senators, so their nominations didn’t fall victim to the Senate ”blue slip” tradition that dictates the process. A blue slip indicates consent to the nomination by the nominee’s home state’s senators. In recent practice, it’s led to Republican senators blocking many of Biden’s judicial appointments in red states, regardless of the nominee’s qualifications. Under current Senate custom—but not actual Senate rules—without that blue slip, the nominees cannot be considered or voted on by the Judiciary Committee, resulting in their nominations, and any subsequent vote by the full Senate, being stalled indefinitely. 

Under the current Senate calendar, the number of Biden’s nominees likely to be approved under this regimen—barring retirements or other judicial openings—stands at approximately 189. After that, a few judges will likely still make their way to a vote, but only if Democrats and Republicans can agree on a path forward. That typically requires that Republicans provide the coveted blue slip, usually in exchange for a more conservative nominee. It is realistically quite limited, given Republicans’ track record during the last three years, and the intense emphasis they place on appointing only like-minded judges. So unless the blue slip tradition is abrogated, Biden may see very few judges confirmed by the Senate beyond those 189 or so “blue state” nominees.

And assuming he wins a second term, should Republicans gain control of the Senate in 2024 or thereafter, Biden’s ability to get his chosen judges confirmed will almost completely evaporate.

RELATED STORY: Enough warnings on blue slips, Sen. Durbin. It’s time to act on it