November 29, 2013

With the filibuster gone, progressives have been arguing that the time is ripe for a burst of quick confirmation hearings to fill up empty slots in the executive branch and the federal judiciary. But there are more antiquated Senate traditions standing in the way of that. The latest practice to come into focus now that the filibuster is gone is the “blue slip” rule, which says that when a federal judgeship opens in a particular state, both home state senators have to sign off on the appointment before it can move forward.

Senate Democrats should not hesitate to continue to streamline the Senate’s rulebook if Republicans continue to use procedural tricks to block the nomination process. Republicans will not be so generous when the tables are turned.

This excellent Charlie Savage article gives us the upshot:

Twelve more appeals court seats are either vacant or will be by the end of 2014. All but one are in states with at least one Republican senator. As a result, Mr. Obama still lacks unrestricted power to swiftly appoint a flurry of more clearly left-of-center judges than he has done to date, despite the fears of conservatives and the hopes of liberals, specialists said.

Senators tend to have a rather sentimental attachment to the idiosyncrasies of their institution, which are centered around collegial rules and norms like unanimous consent. In fact, the blue slip business isn’t even a formal rule, it’s just a tradition of the Judiciary Committee. If he wanted to, Senator Leahy, Chairman of the Judiciary Committee, could just ignore it altogether. Here he is:

“I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate,” he said in a statement. “As long as the blue slip process is not being abused by home-state senators, then I will see no reason to change that tradition.”

Sigh. As Savage details, the blue slip rule is almost certainly already being abused–why else would the vast majority of empty appellate and district court seats be in states with at least one Republican senator? (Texas alone has seven vacancies.)

I see no remotely justifiable policy reason to give senators a veto over all judgeships in their state. But the real reason to ditch rules like this is counterfactual. Imagine that Republicans again gain control of the presidency and the Senate. You think stuff like the blue slip rule will survive for a single microsecond if it stands in the way of appointing Eugene Scalia (son of you-know-who) to the federal bench? Of course not.

In fact, at this point there is no reason not to bust out the big red pencil on the Senate rulebook and dramatically reduce the potential for obstruction. The recent filibuster reform, for instance, only reduced the number needed to break one to 51 votes. You still have to file cloture petitions and let them “ripen,” an absurd procedure which takes at least three days to carry out. Given how very little time Congress actually spends in session, this can easily eat up weeks. (While we’re at it, Senate holds should go too.)

If a majority of the Senate agrees to stop debate, then any particular vote should take about as long as it takes 100 people to say either “yea” or “nay” in succession. Thirty minutes ought to be more than enough.

Democrats have already acknowledged the obvious fact that Republicans are hell bent on using any procedural measure whatsoever to gum up Obama’s presidency– the vote to finally reform the filibuster proved that. There is no reason to get cold feet now, should further reform be necessary.