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Biden, GOP Should Deal on Red-State Judge Picks, Durbin Says (1)

Dec. 21, 2022, 6:16 PMUpdated: Dec. 21, 2022, 9:45 PM

Senate Judiciary Chair Richard Durbin (D-Ill.) encouraged compromise between President Joe Biden and Senate Republicans on US district court nominees in conservative-led states as progressives push for more aggressive tactics.

“A large number of vacancies are in red states, and we need to get Biden and the Republicans on the same page of picking compromise candidates,” Durbin said in an interview in his office on Wednesday.

Durbin’s comments come as progressives renew calls for him to drop the requirement of home-state support for district—or trial court—nominees in an effort to advance more Biden picks in states with Republican senators. Lawmaker support is conveyed by submitting a form known as a “blue slip.”

So far, most of Biden’s district court appointments have been in states with two Democratic senators, though the White House added to its red-state picks on Wednesday. A list of six judicial nominees to district courts includes US Magistrate Judge and former federal prosecutor Matthew Brookman for a seat on the US District Court for the Southern District of Indiana.

The White House didn’t respond to a request for comment on Durbin’s remarks.

Durbin, who is expected to again lead the Judiciary panel next Congress, recommitted to his standing policy. “I want to respect the blue slips, and I’ve said the only exceptions will be if there’s a case which clearly demonstrates a disregard for a nominee’s qualifications because of race, gender, or sexual orientation,” Durbin said.

Biden ‘Hurdle’

Progressives say keeping blue slips as-is will be a hurdle for Biden when lawmakers open 2023 in January with Democrats holding a narrow majority in the Senate.

Chris Kang, chief counsel for the progressive judicial advocacy group Demand Justice, said prior to Durbin’s comments that blue slips were “one of the biggest obstacles“ to Biden’s nominations effort next year.

“It’s up to Chairman Durbin to show he has President Biden’s back and won’t allow Republicans to abuse blue slips with impunity,” Kang said in an emailed statement.

Successful negotiations are possible, Durbin said, pointing to his own experience with the Trump administration.

“It can be done. I did it with Trump, for goodness’ sakes,” he said.

Durbin said he wasn’t able to get everything he wanted when negotiating on the eight judges confirmed to Illinois courts under Trump but was still pleased with the nominees. “We did some remarkable things,” he said.

Republicans abandoned the practice of treating blue slips as veto of Trump-era circuit nominees, but kept it for district appointments.

Durbin’s blue slip policy has faced just one test under Biden. His nominee to a seat on the Eastern District of Wisconsin, William Pocan, was opposed by Sen. Ron Johnson (R-Wis.) after the senator had previously supported him.

Durbin said he spoke to Johnson about his opposition, which was based on positions Pocan took, and determined with Sen. Tammy Baldwin (D-Wis.) “to not push it forward at that moment.”

As far as where the line might be for exceptions to the blue slip rule, Durbin cited Justice Potter Stewart’s quote about obscenity, saying “I know it when I see it.”

“I think we’re in a similar situation here, I can’t give you a hard and fast definition for an exception to blue slips. I want to lean in favor of blue slips and use them effectively to fill vacancies,” Durbin said. “But in the extreme examples, I’ve decided I’m not above considering the nominee that wouldn’t have two blue slips.”

(Updates with additional information from interview and new nominations.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com