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Fate of Senate Custom an Early Test for Durbin on Judicial Picks

Feb. 4, 2021, 9:46 AM

New Senate Judiciary Chair Dick Durbin faces the first test of how he balances his institutionalist instincts and progressive pressure on judicial confirmations when it comes to whether he lets home-state senators block nominees.

Progressives consider Durbin’s approach to the “blue slip” privilege an important signal of how aggressive he’ll be in advancing President Joe Biden’s judicial nominees.

The decision by Senate Republicans to ignore blue slips from home-state Democrats for circuit nominees made it easier for President Donald Trump to remake those courts with younger conservatives. He appointed more than a quarter of the federal bench, including 54 appellate judges.

“I’m hopeful and would expect that he would not honor Republican blue slips on circuit court judges,” Chris Kang, co-founder and chief counsel of progressive judicial advocacy group Demand Justice, said of Durbin. Kang previously served as director of floor operations for the Illinois Democrat and as Judiciary Committee counsel.

Durbin’s chairmanship became official on Wednesday with Democrats holding the Senate majority by the narrowest of margins.

Senate Custom Abandoned

A century-old custom, senators mark their approval or opposition to a judicial appointee from their home state on blue questionnaires. Depending on the party in power, they could be used to stop a nomination.

In 2017, then-Judiciary Chair Chuck Grassley (R-Iowa) said he wouldn’t consider blue slips for circuit nominees, arguing the mechanism shouldn’t be used as “single-senator vetoes.”

His announcement came after two of Trump’s appellate picks, David Stras and Kyle Duncan, didn’t receive blue slips from both home-state senators. Republicans kept the custom in place for district courts.

Durbin has previously lamented departures from Senate norms, but declined to comment to Bloomberg Law about whether he’d return to the blue slip for circuit nominees.

In December, Durbin said “We’re not going to play by one set of rules for nominees under a Republican president and another set under a Democratic president,” according to a statement provided by his office.

“I will do everything in my power to ensure that the Committee gives President Biden’s judicial and executive branch nominees prompt and fair consideration,” Durbin added. “That means timely hearings and timely votes, just like this Committee did for former-President Trump.”

A former Durbin aide, who spoke on the condition of anonymity to be more candid, said it wasn’t “in his DNA” to ignore blue slips, but that Durbin may not have a choice if that’s what the caucus and Majority Leader Chuck Schumer (D-N.Y.) want to see.

Lingering Scrutiny

Progressives want Durbin to be more aggressive than was Dianne Feinstein (D-Calif.) as the Judiciary Committee’s top Democrat during the Trump era.

Her silence on the blue slip and conciliatory tone—including hugging Chair Lindsey Graham (R-S.C.) at the end of Amy Coney Barrett’s Supreme Court confirmation hearings last fall—prompted calls from some on the left for her to step aside.

Durbin also raised eyebrows among progressives when he publicly apologized to Barrett for her having to go through vetting and hearings that might have been difficult for her children.

“There’s no reason why Democrats should be apologizing to someone who’s on their way to the cushiest job in the government,” said Meagan Hatcher-Mays, director of democracy policy for progressive group Indivisible.

Still, she’s “pretty confident” Durbin will be a better chair than Feinstein would have been.

Tough Enough?

Sen. Sheldon Whitehouse, (D-R.I.), a progressive favorite who entertained a bid for the Judiciary chairmanship, said at a Jan. 27 panel discussion that a test for Democrats would be whether they’re willing to be tough on Republicans who withhold blue slips.

Whitehouse recommends Durbin honor blue slips from Democrats on circuit nominees “because that’s been our tradition.” But, he said, “the Republicans, as far as I’m concerned, have utterly waved their rights to have any claim to a blue slip for circuit courts, so I wouldn’t pay any attention to them.”

He also told the panel event held by progressive judicial advocacy group Alliance for Justice that he wasn’t sure whether Durbin had made a final decision but that maintaining the same standard Republicans used was the “logical position.”

“If we go back to giving Republican senators circuit court blue slips, progressive heads are going to explode all across the country by the tens of thousands,” Whitehouse said.

Nan Aron, president and founder of the progressive Alliance for Justice, said in an interview that Democrats made clear during the Trump years that there was “no going back” on circuit blue slips. Now that they control the process, Aron said she assumes Democrats will “remain true to their word.”

50-50 Split

Judicial nominations won’t be the only issue Durbin will confront as chair. Immigration and criminal justice also will be top priorities, progressives and those familiar with the process say.

The 50-50 split among the parties in the Senate overall, however, will make his efforts to get judges through more difficult than it was for Republicans during the Trump years when they controlled the chamber with votes to spare.

“He sometimes might have to assess what’s realistic and what is not,” said Michael Gerhardt, who served as special counsel to Judiciary Committee for seven of the nine sitting Supreme Court justices.

Every Democratic vote will be important on judicial nominations and Durbin may need to compromise with moderate Democrats or Republicans, said Gerhardt, now a University of North Carolina law professor.

“Compromise may not always make progressives happy,” he said.

Two Hats

Durbin has spent more than 37 years representing Illinois in Washington, and fashions himself a dealmaker. In the evenly divided Senate, where he will also be the No. 2 Democrat as whip, that could work to his benefit.

“Senator Durbin has been a tremendously successful legislator in being able to build bipartisan support,” Kang said. “He has an ability to reach across the aisle that will help both jobs.”

Already this year, Durbin has joined a bipartisan group of 16 senators positioning themselves as a group that can help reach compromise.

The fact that Durbin will be leading the committee and serve in a caucus leadership role “is only a benefit,” said Ronald Weich, former chief counsel to Senate Majority Leader Harry Reid (D-Nev.) and the late Sen. Edward M. Kennedy (D-Mass.).

“He’ll be able to bring his understanding of the caucus and the needs of the caucus to his role as chairman,” said Weich, currently a dean at the University of Baltimore.

Durbin may also have to referee partisan tensions among committee members.

Judiciary members Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) have come in for criticism over their prominent roles in objecting to congressional certification of the Electoral College results in January.

Several Judiciary Democrats filed an ethics complaint against Hawley and Cruz with incoming Ethics Committee chair and fellow Judiciary member Chris Coons (D-Del.). Coons has called for the two Republicans to resign.

The committee will also have three new members. Democrats approved Sen. Alex Padilla (D-Calif.) and Sen. Jon Ossoff (D-Ga.). They will fill the vacancy left by Vice President Kamala Harris and the seat afforded to Democrats in the majority.

Sen. Tom Cotton will (R-Ark.) will also join the committee after the departure of Sens. Mike Crapo (R-Idaho) and Joni Ernst (R-Iowa). Republicans have one less seat than they did last Congress.

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

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