Politics / February 1, 2024

Democrats Are Ceding Control of the Judiciary Because of… Tradition

To counter the damage Trump did to the judiciary by stuffing it with conservative judges, Biden & Co need to act fast. Right now, they’re not in any hurry.

Elie Mystal
Five of President Joe Biden’s nominees to the federal judiciary are sworn in during a Senate Judiciary Committee hearing on Wednesday, October 4, 2023.
Five of President Joe Biden’s nominees to the federal judiciary are sworn in during a Senate Judiciary Committee hearing on Wednesday, October 4, 2023. (Eric Lee / Bloomberg via Getty Images)

By any objective measure, President Joe Biden has been incredibly successful with his judicial nominations. He appointed a record number of judges in his first year in office, and 88 percent of his nominees have been confirmed by the Senate—no small feat given the Democrats’ slim majority in that body (thank you, Vice President Kamala Harris). And Biden’s nominees have been incredibly diverse in terms of gender, ethnicity, and experience.

Unfortunately, Biden cannot be judged by an objective measure. His appointments must be viewed in the context of his immediate predecessor, Donald Trump, and Trump’s makeover of the federal judiciary in the Federalist Society’s image.

By that measure, Biden is not doing all he needs to do. According to the Brookings Institute, Trump appointed a record-setting 177 district court judges, 53 circuit court judges, and three Supreme Court judges in his four years. Biden has appointed only 126 district court judges, 39 circuit court judges, and one Supreme Court justice in his first three years. Biden still has time to make up the gap, but he is already behind Trump’s three-year output, and the fourth year is when Trump got serious about remaking the courts. It’s important to remember that in 2020, Trump’s last year in office, he and Mitch McConnell turned the Senate into a judicial-confirmation machine.

Thus far, the same cannot be said of Biden or Senate Judiciary Chairman Dick Durbin. As of this writing, there are 59 open seats throughout the federal judiciary. Biden has made nominations for only 22 of those seats; critics, meanwhile, say that confirmations tapered during the last year. That tapering, per a recent New York Times article, “likely put the Trump administration threshold out of reach for Mr. Biden and Democrats in an election year when the Senate will be gone from the Capitol for long stretches.”

In a message to The Nation, Durbin’s office defended his record, saying that his committee has scheduled votes and hearings on most of the pending nominations—and he told The Times that he aims to confirm at least 29 more judges before the year. Again, objectively, this is all fine. The problem is that it still lags behind the pace set by Trump.

Establishment Democrats and Durbin defenders blame Republicans for the recent slow-down. A couple of months ago, the Republicans on the Judiciary Committee threw an epic hissy fit when Democrats subpoenaed Federalist Society svengali Leonard Leo and conservative judicial sugar daddy Harlan Crow to appear before the committee in an ethics probe. Since then, Republicans have been using every possible procedural trick to slow the confirmation process.

But the larger problem is Durbin’s insistence on honoring what is known as the “blue slip” process for judicial nominations. The blue slip allows senators to weigh in on a president’s judicial nominee from their state, and to do so before the nomination is made to the wider body. Traditionally, if a senator approves of the nominee, they will return a “blue slip” and the confirmation process can go forward; if the senator disapproves, the president finds a more agreeable nominee. It’s one of the reasons “red states” end up with conservative federal courts, while “blue states” end up with liberal ones.

Like the filibuster, the blue slip is not a constitutional rule or a federal statute; it’s just another anachronistic, antidemocratic tradition born in the Jim Crow South and maintained by the broken Senate. And, like the filibuster, former Senate majority leader McConnell simply ignored it in the case of circuit court nominations when it stood between Republicans and judicial power. McConnell and Trump didn’t let the lack of blue slips stop them from appointing ultraconservative judges to the Second Circuit (which covers New York) or the Ninth Circuit (which covers California and most of the West).

Durbin continues to use blue slips for district court nominations. He claims to merely be continuing the precedent set by Republicans, when they began ignoring blue slips for the circuit courts but continued to use them for district courts. But the reality is that Republicans are using the power of the blue slips to prevent liberal judges from being appointed in red states. 

Of the current vacancies in the judiciary, 33 are in states with at least one Republican senator. Only 19 percent of Biden’s judges thus far have been sent to states with one Republican senator. By contrast, 51 percent of Trump’s nominees went to a state with at least one Democratic senator.

Durbin told The New York Times that he thinks that honoring blue slips is a way to ensure more moderate Republican nominees, should Republicans retake the Senate and the White House. Critics, including me, believe that failing to use the power to shape the judiciary now, while he has it, is… failure.

It’s like Biden and Durbin are trying to chase down the people who have kidnapped the federal judiciary, but they won’t drive over 55 mph because they’re worried about violating the speed limit. There’s no mystery as to why they’re falling behind. They’re adhering to rules the other side won’t follow. It’s, frankly, pathetic.

Biden and Durbin won’t force judges into Republican-controlled enclaves, and they can’t run up the score in Democratic states because—and I can’t believe I have to type this—old-ass liberal judges won’t retire and let Biden appoint their lifetime replacement while he still can. Of the 17 circuit court judges appointed by Barack Obama or Bill Clinton who became eligible in the last year for “senior status” (a semi-retirement that allows judges to vacate their seat but still draw their full salary and work on cases), only three relinquished their power and allowed Biden to replace them. Three, y’all. Only three of these people were able to look at the 2024 Senate electoral map, and an actuarial table, and piece together the information wisely. Excuse me while I say “Ruth Bader Ginsburg” in my bathroom mirror three times and wait for the sweet release of death.

The Nation Weekly

Fridays. A weekly digest of the best of our coverage.
By signing up, you confirm that you are over the age of 16 and agree to receive occasional promotional offers for programs that support The Nation’s journalism. You may unsubscribe or adjust your preferences at any time. You can read our Privacy Policy here.

I do not know what to say to Biden, Durbin, 14 judges appointed by Democratic presidents, and the wider liberal intelligentsia to make them take the courts more seriously. Republicans are ruthless when it comes to judicial appointments, confirmations, and retirements. Their rewards have been a judiciary that takes away abortion rights, allows polluters to befoul the earth, destroys organized labor, menaces transgender kids, commandeers federal immigration policy, and makes it easy for mass shooters to accumulate weapons.

Democrats lose on all of these issues, despite having policies with broad, popular appeal, because Democrats have lost control of the courts. We are mere months away from a potential reordering of political power in this country, and we have the opportunity to appoint people who are immune to such political headwinds and can hold power for literal decades, yet Biden is waiting for senators like Ted Cruz and Tommy Tuberville to return a slip of paper that approves his use of the constitutional power to appoint judges.

It is maddening. It is malpractice. And yet it has been the modus operandi of the Democratic Party during my lifetime. This right here is why we fail.

Correction: An earlier version of this article stated that “McConnell and Trump didn’t let the lack of blue slips stop them from appointing ultraconservative judges to the…DC Circuit.” That was incorrect: blue slips were never used in DC Circuit appointments since the circuit does not include any home states. The article also stated that Senator Durbin “brought the blue slip back.” He did not bring it back for circuit court nominees but rather continued using it for district court nominees, as his predecessor Senator Charles Grassley had done.

Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

More from The Nation

Ezra Klein

Are Democrats Over That Ezra Klein Piece Yet? Are Democrats Over That Ezra Klein Piece Yet?

A major pundit, unmoored from political reality, suggests Democrats need a brokered convention to replace Biden. Liberals freak out. Stop it!

Joan Walsh

Michigan’s “Uncommitted” Campaign Is Challenging Biden. It Could Also Save Him.

Michigan’s “Uncommitted” Campaign Is Challenging Biden. It Could Also Save Him. Michigan’s “Uncommitted” Campaign Is Challenging Biden. It Could Also Save Him.

Rashida Tlaib, Andy Levin, and others are urging Michigan Democrats to send a message to the president about Gaza by voting “uncommitted” in the state’s February 27 primary.

John Nichols

A man in sunglasses carries a sandwich board reading

Will a Florida Ballot Measure to Protect Abortion Shake Up the State’s Politics This November? Will a Florida Ballot Measure to Protect Abortion Shake Up the State’s Politics This November?

Not only is Florida the last bastion of abortion access in the Southeast, it’s a state with the third highest number of electoral votes and a memorable record of swinging president...

Amy Littlefield

Donald Trump in a courtroom looking over his shoulder.

Trump Gets (Almost) the New York Business Death Penalty Trump Gets (Almost) the New York Business Death Penalty

The crime family is paying for its real estate sins. Eventually, we hope, Trump will pay for more than that.

Joan Walsh

Donald Trump with a baseball bat

Donald Trump Threatens to Start a Global Protection Racket Donald Trump Threatens to Start a Global Protection Racket

His promise to abandon NATO members who fall short of military spending targets puts international stability at risk.

Sasha Abramsky

Jon Stewart on the set of The Daily Show.

Jon Stewart Is Not the Enemy Jon Stewart Is Not the Enemy

You don’t defeat Trump by rejecting comedy.

Jeet Heer