Democrats on the Senate Judiciary Committee warned for years that a change Republicans made during the Trump administration for judicial nominees would one day work against them — and Wednesday was that day.
Judiciary Chairman Richard J. Durbin, D-Ill., held a confirmation hearing for Andre Mathis, President Joe Biden’s pick for a seat on the U.S. Court of Appeals for the 6th Circuit that has historically been designated for a nominee from Tennessee.
Durbin did so over the objection of Tennessee Republican Sens. Marsha Blackburn and Bill Hagerty, who as the home-state senators previously would have had a greater influence over who was nominated because of a long-standing committee tradition known as “blue slips.”
Republicans had used that to block some of President Barack Obama’s appeals court nominees, which left those spots vacant for President Donald Trump to fill. Under the tradition, if the home-state senators didn’t return the literal “blue slip” of paper to the committee, there would be no hearing and no confirmation.
But Republicans jettisoned that tradition during the Trump administration. Durbin on Wednesday said Republicans had moved 18 of Trump’s appeals court nominees through the committee without the return of “blue slips” from home-state Democratic senators, and ultimately confirmed 17 of them.
“We are about to enter a four-year — I don’t want to characterize or mischaracterize the situation — four years of trying to balance the books,” Durbin said.
That comment was in response to Louisiana Republican Sen. John Kennedy, who acknowledged the move during the Trump administration but suggested that the committee “call off the dogs” and find a “neutral way” to restore the blue slip process.
Durbin made it clear that wasn’t happening during the Biden administration. “Perhaps we can agree that prospectively after the 2024 presidential election, there will be a rule,” Durbin said. “We don’t know who’s going to win that at this point, and we might have a standard moving forward from there.”
Blackburn, a member of the Judiciary Committee, said during the hearing that the White House did not meaningfully consult her on the Mathis nomination. She said Durbin did not send her the blue piece of paper or give her enough advance warning that the hearing would happen.
“I do recognize the president’s constitutional prerogative to nominate individuals of his choosing to serve on the federal judiciary, but we in this Senate have a crucial constitutional role to play as well,” Blackburn said. “The White House communicated with my office a total of two times on this nomination.”
Blackburn said she had “serious concerns” about the nominee’s lack of experience and qualifications. Mathis, an attorney based in Memphis, has never argued a case in a federal appeals court or served as a judge.
Iowa Republican Sen. Charles E. Grassley — who as Judiciary chairman during the Trump administration moved forward on appeals court nominees without the blue slips from Democratic home-state senators — said the Tennessee senators “are right to be upset” because there was not enough consultation from the White House.
“The approach adopted by this administration ignores the idea of bipartisan cooperation. It is a severe change from past practices to require so little consultation,” Grassley said. “As has been said before, there cannot be one set of rules for Democrats and another set of rules for Republicans.”
But those complaints did not gain traction.
“My concerns and the concerns of my Democratic colleagues were ignored. Republicans chose to abandon the senatorial courtesy,” Durbin said. “My colleagues across the aisle, I think, would be hard pressed now to demand that the Democrats reinstate this practice.”
Rhode Island Democratic Sen. Sheldon Whitehouse, who had repeatedly warned about the loss of home-state senator power when the change was made, said to Republicans: “You chose to do that. And that’s where we are right now.”
Whitehouse proposed that the committee find a solution, but that it could not be that there are blue slips when there is a Democratic president and no blue slips when there is a Republican president.
“I think the damage that was done to this institution by the decision to remove the blue slip institution of this committee, the decision to end the blue slip, was very real,” Whitehouse said. “And now your side is feeling the pain of it, that we have felt for the past administration.”