Be bold, Mr. President! That’s the message from liberal advocacy groups pushing for more progressive judges now that Senate Democrats have nuked the filibuster for judicial nominations.
“We certainly think there is a need for professional diversity on the federal bench,” says Nan Aron, president of the Alliance for Justice. “There are only a handful of lawyers who have been appointed who have backgrounds in legal services, criminal defense, public interest, or civil rights.”
When Barack Obama was elected in 2008, liberal legal groups, which have been struggling to replicate the success of the conservative legal movement in placing their heroes on the federal bench, saw an opportunity to even the score. But Republican embrace of the filibuster meant that some of the most promising liberal legal minds Obama chose — picks like Goodwin Liu, whose nomination to the federal bench was filibustered into oblivion — never had a chance. Republicans warned that abolishing the filibuster would lead to more judges in the vein of Antonin Scalia or Clarence Thomas on the bench. Now liberals are hoping Obama starts nominating picks who look like their progressive counterparts.
“You need to have a sample of people who have actually interacted with real human beings, who have represented them when they’ve been accused of a crime, when they’ve been victims of discrimination, and actually understand what the issues are in some of those cases,” says Caroline Fredrickson, president of the American Constitution Society. “The administration has certainly nominated a number of people with that background, but we’d love to see more.”
Indeed, Obama has nominated the most diverse slate of candidates to the federal bench in history. But the GOP’s frequent use of the filibuster meant that when making its choices, the White House had to take into careful consideration candidates who had a fighting chance of making it to 60 votes in the Senate. A large portion of Obama nominees come from private practice or from roles as government attorneys or prosecutors, according to an AFJ analysis. More than three times as many Obama Circuit Court nominees have been prosecutors as public defenders; for the District courts it’s more than twice as many.
Democrats got a big win on Thursday in the filibuster reform. But there are still less commonly known procedural obstacles to nominating judges, and just because Obama can nominate more liberal judges doesn’t mean he will.
The most significant of these procedural obstacles is the “blue slip” process. Decades old, it’s an informal Senate tradition implemented by the chair of the Senate Judiciary Committee, in this case Vermont Democratic Sen. Patrick Leahy. Chairmen have implemented the blue slip process differently over the years, but Leahy’s custom is to be very deferential to his fellow senators from both parties.
Here’s the process. When a nomination or potential nomination is brought forward, the senators from that state are given a blue slip of paper. Leahy’s practice is not to put forth a nominee for a committee vote unless both of those senators return their blue slips, indicating their approval of allowing the nomination to go forward. Republicans have taken advantage of Leahy’s deference to slow down judicial nominations–in some cases, even for names they have approved in advance.
In September, Florida Republican Sen. Marco Rubio sank the nomination of William Thomas, who would have been the first openly gay black judge, by withdrawing support for his candidacy after previously having endorsed it.
The blue slip process can act as a silent filibuster, a way Senators can block judicial nominations without drawing public attention to what they’re doing.
“The blue-slip problem has already been a significant obstruction tool with certain nominees,” says Elisha Bannon of the Brennan Center. “It could potentially become an even more significant tool of obstruction now that the filibuster is no longer an option.”
The blue-slip process is far more opaque than the filibuster, and it means a potential nomination can be smothered to death without anyone hearing a word about it. A Democratic official familiar with the process said ten nominations were stalled by Republican senators not returning their blue slips. The Democratic official also said that Arizona Republican Sens. Jeff Flake and John McCain have not returned blue slips for five nominees to the Arizona District Court — even though McCain has endorsed the candidates.
There are still 93 vacancies on the federal bench, and only 51 nominees. Thirty-seven of the remaining 42 vacancies without nominees are in states with at least one Republican Senator, according to AFJ, and Leahy won’t put a nomination forward without both blue slips. Leahy says he will keep the current blue slip practice in place, but that he won’t hesitate to change it if it’s abused.
“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,” Leahy said in a statement to msnbc. “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.”
Even with the blue slip process intact for now, nuking the filibuster removes a significant obstacle to a more progressive judiciary, and liberal groups will be pushing Obama to take advantage.
“We see this as an opportunity to make that happen,” says Aron. “Whether that actually comes to fruition is another matter.”
Adam Serwer