Feinstein absence ratchets up Senate tensions over Biden judicial nominees

THE 15 JUDGES BIDEN IS STRUGGLING TO CONFIRM WHILE FEINSTEIN IS OUT OF THE SENATE

Now, progressives want vengeance over the episodes and are calling for Senate Democrats to abandon the tradition of blue slips, the legislative tool Hyde-Smith used to effectively veto the Mississippi nominee, in retaliation.

Rank partisanship over the confirmation of judicial nominees is nothing new. It’s raged for years as both parties attempt to fill the courts with as many judges of their political and ideological persuasion as possible.

Yet the latest flare-up threatens to send the Senate lurching further from its institutionalist roots as senators weigh whether to scrap a practice that gives the minority party great sway over judicial appointments.

At issue is the blue slip, a piece of paper handed to a judge’s two home state senators once he or she is nominated to the federal bench.

The form began as a courtesy meant to help the Judiciary Committee assess the qualifications of the president’s nominees. Still, in recent decades, it’s become a veto of sorts. If both senators did not return the slip, the nominee would not get a hearing or vote.

The precedent has eroded some since the chairmanship of the now-retired Sen. Patrick Leahy (D-VT), who only moved district and appeals court nominees if two slips were returned. In the last few Congresses, that practice has applied to district court nominees alone.

But the tradition could be thrown out altogether amid frustration over the pace of judicial appointments.

Senate Majority Leader Chuck Schumer (D-NY) celebrated the Senate confirming Biden’s 100th judge on Feb. 14, just two years into office. That put Democrats on track to rival the 234 confirmed when Republicans controlled the Senate under former President Donald Trump.

But a pair of events have threatened to stymie that pace.

First, Feinstein was hospitalized with a severe case of shingles. She has been performing her duties as she recovers at home in California, but her absence from Washington, which is going on two months, has left the Judiciary Committee deadlocked 10-10. That means Democrats are at the mercy of Republicans to help advance nominees.

Second, Hyde-Smith announced in early April she would not return the blue slip for District Attorney Scott Colom, citing the money he’s received from liberal megadonor George Soros and Colom’s views on transgender rights. She’s one of a handful of Republicans to block Biden’s judicial nominees.

While the Feinstein dilemma is not a crisis of their own making, Senate Republicans refuse to help Democrats out of the bind.

The 89-year-old senator has provided no timeline for when she will return, prompting progressives to call for her resignation over the delays it’s causing on judicial nominations.

She proposed something of an escape hatch earlier this month, asking that Schumer swap her out temporarily on the Judiciary Committee after two House Democrats became the first lawmakers to join the call for her to step down.

Schumer agreed to put the request before the full Senate, framing it as a matter of “senatorial collegiality.” However, Republicans quickly made clear that, despite their reverence for Feinstein as a female trailblazer in the Senate, there was no appetite to go along with a move that would help Democrats appoint liberal judges.

As lawmakers returned from the two-week Easter recess, Republicans uniformly announced their opposition. Schumer’s request from the Senate floor the next day failed after Sen. Lindsey Graham (R-SC), known as a bipartisan vote on the Judiciary Committee, objected.

The move has infuriated progressives, who are demanding that Senate Democrats threaten to end the tradition of blue slips if Republicans won’t acquiesce.

“Just raising the specter of it might cause the Republicans to think twice,” Brian Fallon, the executive director of judicial activist group Demand Justice, told the New York Times. “Republicans didn’t even contemplate trying to meet the Democrats halfway because they don’t fear any reprisal.”

Democrats are, in fact, considering ending the practice, but it’s not clear there’s a desire for retribution at this point. Asked about the prospect, Sen. John Kennedy (LA), a Republican member of Judiciary, confidently dismissed it.

“No, no. That’s all a bluff,” he told the Washington Examiner.

“The Democrats want blue slips as much as the Republicans do,” he added. “Without the blue slip, we have zero power vis-a-vis the White House. And the United States Congress has given away so much of its power to the executive branch that with respect to the blue slip, I think most, if not all, Republicans and, frankly, most, if not all, Democrats support the blue slip.”

Two Judiciary Committee Democrats the Washington Examiner spoke to said the blue slip conversation is premature, while a third, Sen. Sheldon Whitehouse (D-RI), said the decision is up to Chairman Dick Durbin (D-IL). Sen. Cory Booker (D-NJ) said he believes the tradition should stay in place.

“We have a challenging dynamic on the committee where we’re seriously debating the future of the blue slip and trying to get back to regularly confirming President Biden’s nominees,” Sen. Chris Coons (D-DE) said. “It is my hope that we will soon be back to full committee membership and be able to resume consideration of nominees. So we’ll see. I think we’ll have to cross that bridge when we get there.”

Should Democrats abandon precedent on blue slips, it would mark the latest step taken to diminish the minority party’s power over the judicial nomination process.

Then-Majority Leader Harry Reid (D-NV), facing Republican obstruction on President Barack Obama’s judges, moved forward with the so-called “nuclear option” in 2013, changing Senate rules so that nominees except those for the Supreme Court could not be filibustered. Mitch McConnell (R-KY) took that a step further when he became majority leader, ending the rule for Supreme Court picks in 2017.

That decision led to the appointment of three justices under Trump, cementing the Supreme Court’s conservative tilt for decades to come.

The blue slip tradition is not a Senate rule — it’s up to the discretion of the Judiciary Committee chairman — and both parties have made their own modifications to it over the years. Durbin even has a carve-out in which he won’t honor the blue slip policy if he feels a nominee is being stalled due to racial or gender discrimination.

Yet casting it aside would nonetheless mark an escalation in Washington’s judicial wars, a move that Sen. John Cornyn (TX), a senior Republican on the Judiciary Committee, said Democrats would come to regret.

“We know what goes around, comes around,” he told the Washington Examiner. “We’ve seen that with the wars over the filibuster that Harry Reid started, that ultimately came back and bit the Democrats, particularly on the Supreme Court. So I just think that would be an unjustified escalation.”

Sen. Thom Tillis (NC), another committee Republican, defended Republicans’ opposition to the request to replace Feinstein, saying it’s unheard of for a sitting senator to be removed from a single committee on a temporary basis.

“If the request had been that ‘I’m not able to perform my committee duties, I’d like to be relieved from Judiciary, Appropriations, and Intel,’ then that’s rational,” he told the Washington Examiner. “That’s been done before.”

“I think that we’re just trying to understand the logic,” he added.

To some extent, the blame-casting between the two parties obscures a fight going on within the Democratic Party itself.

Progressives, who want lawmakers to take a won’t-back-down approach to Washington politics, have for years bristled at Feinstein over her bipartisan streak. Despite being an ardent supporter of gun control and an early voice in favor of gay marriage, Feinstein, like many longtime senators, is an institutionalist at her core and hails from an era when senators were more collegial with one another.

Senate Democrats, in contrast to liberal pundits, have held off on calls for her resignation and are reluctant to abandon the blue slip tradition.

The difference in style and approach reflects a rift in the party that has been simmering for years as a new generation of liberals gains sway within the party.

Progressives unsuccessfully tried to unseat Feinstein in her 2018 reelection campaign and pressured her to step down as the top Democrat on the Judiciary Committee after she lauded her GOP colleagues during the confirmation hearings of now-Supreme Court Justice Amy Coney Barrett in 2020. Feinstein relinquished her perch on the committee later that year.

Mike Madrid, a GOP consultant from California, said the move to sideline Feinstein is reminiscent of the push to get Ruth Bader Ginsburg off the Supreme Court. And while there are “ideological undertones” to the fight, he believes at its core, the split within the Democratic Party over judicial nominations is generational.

“It’s not just that their policies are different. Their stridency and their tone is different,” he told the Washington Examiner.

At least for now, Senate Democrats are looking to move ahead on judicial nominations with or without Feinstein.

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The Judiciary Committee held its first hearing in weeks last week to consider a slate of Biden nominees, advancing seven of them in bipartisan votes. More controversial nominations that will rely on Feinstein’s vote continue to be delayed.