The Washington PostDemocracy Dies in Darkness

Opinion One of Biden’s biggest achievements is going largely ignored

Sen. Richard J. Durbin (D-Ill.), chair of the Senate Judiciary Committee. (Demetrius Freeman/The Washington Post)
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Talk to just about any Democrat right now and you’ll hear disgust and despair. Two centrist senators are refusing to suspend the filibuster to pass voting rights legislation. The Biden administration’s handling of the pandemic is facing increasing criticism. A GOP takeover of at least one house of Congress looks inevitable. This era of Democratic rule feels to many like little more than a slog of failure and frustration.

But there’s at least one area where the White House and Democrats in Congress are achieving a great deal — and they’re doing it without illusions, rejecting the pointless nostalgia for a more congenial time that can do so much to make progress impossible.

On nominating and confirming judges to the federal bench — often seen as one of Donald Trump’s greatest successes and one of Barack Obama’s greatest failures — Democrats are quietly getting the job done.

Here’s the latest: Senate Judiciary Committee chair Richard J. Durbin (D-Ill.) is moving vital appeals court nominees through the confirmation process by casting aside the “blue slip.” That tradition may have been worthwhile in an era of comity and cooperation, but in an age of partisan polarization it’s become nothing but a tool of obstruction the minority can wield to thwart the majority’s will.

Sound familiar? The blue slip is a kind of mini-filibuster, except all it takes is one senator to thwart a judicial nomination.

The way it works is that when the president nominates someone to fill a vacancy, the two senators from the judge’s home state are asked to return a blue piece of paper indicating their consent for the nomination to proceed. It’s a senatorial courtesy, allowing them to weigh in and make sure that only the most upstanding citizens from their state ascend to the bench.

Which is all fine until withholding blue slips becomes a regular way for the minority to keep the president from filling vacancies. Under Donald Trump, Republicans did away with the blue slip tradition for appeals court nominations (though it remains for lower district court nominees).

Now that they control the Senate and the White House, Democrats are doing the same. Durbin has told Republicans that he’ll no longer be constrained by their wishes; the first appeals court nominee to proceed without blue slips, Andre Mathis of Tennessee, is on his way to confirmation.

Naturally, Republicans — who are to hypocrisy what Simone Biles is to somersaults — are outraged that Democrats would follow the precedent they themselves created. Sen. Charles E. Grassley of Iowa, who tossed aside the blue slip tradition as Judiciary Committee chair under Trump, said Democrats’ decision “ignores the idea of bipartisan cooperation.” Sen. Marsha Blackburn of Tennessee called it “a breach of constitutional norms.”

This has been characterized as Democrats playing “hardball,” but that’s absurd. It’s not just that Republicans did away with the blue slip, it’s that the whole tradition clearly no longer serves a purpose in today’s Congress, when the minority party will seek any means it can to obstruct the majority and the courts have become so politicized. Democrats should say good riddance to it.

If Republicans don’t like a judicial nominee, they can criticize them, write op-eds about them, and vote against their confirmation. That’s more than enough. And it’s what Blackburn has done with Mathis; she charged him with having a “rap sheet” over some unpaid speeding tickets, including one for going 5 miles over the speed limit (if you suspect that was a Driving While Black violation, you’re probably right).

Republican whining on this matter will no doubt continue, because Democrats are moving with dispatch to fill vacancies. In his first year, President Biden filled 11 appeals court nominees, almost as many as the 12 Trump filled in his first year — which came after Republicans all but shut down judicial confirmations at the end of the Obama administration — and more than any other president in decades. The 29 district court seats Biden filled in his first year are the most of any president since Ronald Reagan.

In addition, Biden’s judges are by far the most diverse in history. Of the nominees confirmed by the end of 2021, 78 percent were women and 53 percent were people of color. Among them are the first LGBTQ appeals court judge and the first Muslim appeals court judge.

This is a marked contrast with Trump; 76 percent of his judicial appointees were men, and 84 percent were White. It’s also a far more diverse group than Obama appointed; 42 percent of his appointees were women and 36 percent were non-White. In addition, Biden’s nominees have included many former public defenders and civil rights lawyers.

This could all come to a halt if Republicans take back the Senate in November; don’t be surprised if they refuse to confirm any Biden judicial nominees at all for the final two years of his term. Which makes it all the more urgent for Biden to fill every vacancy he can in the next year.

Whatever criticisms you might have of how he’s performed on other issues, this is one area where Biden has been able to keep his promises, and congressional Democrats are doing what it takes to make sure it continues.

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