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Senators Can’t Veto Biden Circuit Picks, Maintaining GOP Policy

Feb. 17, 2021, 11:51 PM

Senate Judiciary Committee Chair Dick Durbin (D-Ill.) will keep the same practice in place for lawmaker input on judicial picks as Republicans used, making it easier for Democrats to get appellate picks confirmed.

Durbin won’t change the policy Republicans put in place during the Trump administration, a Senate Judiciary Committee aide told Bloomberg Law. That means home-state senators can’t derail a Biden circuit court nominee by not returning a so-called blue slip.

The century old custom involves senators marking a blue form to indicate support for a judicial nominee. Prior to 2017, not returning a blue slip could be used by senators to prevent a nominee for a seat in their state from moving forward.

But Judiciary Committee Chair Chuck Grassley (R-Iowa) changed the practice, arguing senators shouldn’t have a veto on picks for circuit courts. His successor, Sen. Lindsey Graham (R-S.C.), kept that practice in place.

The blue slip can still be used by home state senators to prevent district court picks from advancing. But committee Democrats are indicating that’s subject to how Republicans treat the process.

“Although Republican chairs did respect the blue slip for district court nominees, it’s important to note that Democrats worked in good faith with the Trump Administration to identify consensus district court nominees in blue and purple states,” the aide said. The statement was first reported by Politico.

The aide added: “It’s our expectation that Republicans likewise act in good faith and work with the Biden Administration to fill district court vacancies in red and purple states.”

How Durbin would handle the blue slip process was seen as a test by progressives of how he might treat the role of chairman.

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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