“However, it has now become clear that once in power, Democrats, with a few notable exceptions, have largely sought to remove any impediment to realizing their agenda regardless of how time-honored or important a given tradition might be.”
ccording to a May 3rd Politico story by Burgess Everett and Nicholas Wu, the Congressional Black Caucus’ Chairman, Congressman Steven Horsford (D-Nev.), has been lobbying Senate Democrats, who currently control the Senate Judiciary Committee, to do away with the long-standing Senate tradition of the blue slip. The blue slip, briefly explained, is a literal blue piece of paper on which Senators can make known to the Senate Judiciary Committee their recommendation (or lack thereof) when it comes to federal judicial nominees who reside in their home state. Whether or not the Senate Judiciary Committee has declined to move forward with a judicial nomination based on a negative recommendation on a blue slip (or one left unreturned) has not always been perfectly consistent over time; however, in the vast majority of cases, a lack of positive recommendation via a blue slip has brought to a halt a given nominee’s confirmation process.
Despite Democrats praising this policy when in the Senate minority during the Trump years, since the beginning of this year, there has been a strong push for Senate Democrats to do away with the blue slip policy to expedite filling as many judicial vacancies as possible with President Joe Biden’s appointees. (1) Dismissing the blue slip as an example of the United States Senate’s “arcane and obsolete rules,” Matt Ford, writing at The New Republic in January, argued that abolishing the blue slip “would help bring the judicial confirmation process closer to something resembling democracy.” (2) [Emphasis added] Articles released at HuffPost and Common Dreams in mid-April similarly charged that the practice was “arcane,” and they quoted extensively from a bevy of partisan commentators who denounced the blue slip policy in scathing and hysterical language. In neither the HuffPost or Common Dreams piece was there sufficient engagement with the legitimate arguments for preserving the existence of the practice or the fact that a few short years ago it was Democrats who were fretting that the policy might be discontinued when Republicans controlled the Senate Judiciary Committee.
Everett and Wu’s Politico piece, on the other hand, sensibly draws attention to the reasons for the practice’s continued existence and even includes a quotation from Senator Cory Booker (D-N.J.), who like Chairman Dick Durbin (D-Il.), has been reluctant to support retiring the tradition. To this point, Senator Booker was quoted as saying: “Anytime you tear up a Senate tradition, you should be really thoughtful about it.” Even though Democrats previously displayed a nearly unanimous desire to jettison the filibuster during the previous session of Congress, with Republicans now controlling the House of Representatives and with a difficult Senate election map in 2024, Democratic enthusiasm for upending certain Senate traditions appears to have—at least temporarily—waned. And beyond simply just an argument for preserving tradition, it is clear that the blue slip policy is consistent with the Senate’s institutional objectives of protecting the interests of the minority party and emphasizing the role of the states. The Senate was always intended to be materially distinct from the House of Representatives, and prioritizing bipartisan cooperation, as well as the interests of distinct states, has always been essential when it comes to the purpose of the upper chamber.
And, furthermore, there have been notable recent examples of the Biden White House working with red-state Republican Senators to put forward consensus judicial nominees to be confirmed in a bipartisan manner.
Despite Senators Durbin and Booker’s current erring on the side of preserving the practice, the Congressional Black Caucus’ recent hysterics about blue slips (Congressman Horsford went so far as to claim that ending the blue slip “is literally about the fundamental survival of the people we represent”) is all too in line with Democrats’ endless recent anti-institutionalism and inveterate desire to upend governmental tradition. To this point, during the 2020 Democratic presidential primaries, I was consistently chagrined by the candidates’ effective unanimity in declaring their desire to overturn norms for how distinct branches of the American government have operated. For instance, the majority of Democratic presidential hopefuls expressed support for abolishing the Electoral College and the filibuster; allowing Washington, D.C. to become the 51st state (despite compelling arguments that to do so would explicitly violate Article 1, Section 8, clause 17 of the Constitution); and expanding the Supreme Court. Interestingly enough, then-candidate Joe Biden was the only major candidate to oppose abolishing the electoral college, ending the filibuster, and expanding the Supreme Court. (During his relatively short-lived presidential candidacy, Senator Michael Bennet (D-Colo.) was the only other competitive Democratic candidate arguably in favor of retaining the filibuster, but he expressed support for doing away with the Electoral College.) (3) But as the consummate flip-flopper that President Biden is, since prevailing in the 2020 election, he has offered support for abolishing the filibuster in certain cases, as well as an openness to considering expanding the Supreme Court. As has become clear, for many Democratic officeholders, particularly from the activist wing of the party, the enthusiasm for radically departing from the norms of the past goes beyond renaming military bases or removing statues and extends to long-standing hallmarks of American governance.
It is all the more curious to view these calls in the context of the political rhetoric of the last eight years or so, in which Democrats have consistently charged that Republicans, particularly former President Donald Trump, have been characterized by their disregard for norms. However, it has now become clear that once in power, Democrats, with a few notable exceptions, have largely sought to remove any impediment to realizing their agenda regardless of how time-honored or important a given tradition might be. From President Biden’s flurry of executive orders on his first day in office to 48 Democratic Senators, many of whom had strongly supported the existence of the filibuster during the Trump administration, calling for the abolition of the practice to, time again, looking to alter how federal judicial nominees are confirmed, it is clear that an aura of anti-institutionalism permeates the current Democratic governing agenda. The commentator James Lindsay has persuasively argued that when it comes to the Left, it is a useless exercise to point out hypocrisy: “Until you understand that the asymmetry is intentional, and that the intentional nature of the asymmetry is the story, you aren’t ready to tackle what’s going on at the heart of the problem in our societies.”
One thing though—at least for now—some Democrats seem to understand, as Senators Mitch McConnell (R-Ky.) and Mitt Romney (R-Utah) have variously pointed out, is that when one party alters a norm while in the majority, that alteration will likely later be used against it while in the minority. And this, even amid the endless hypocrisy of politics, could be the saving grace.
Erich J. Prince is editor-in-chief emeritus at Merion West.
- Perhaps most tellingly of all, the Congressional Black Caucus, the same organization now demanding the removal of the blue slip policy, wrote a letter to then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) demanding the preservation of the practice on November 17, 2017: “We write today to urge you to preserve the Senate’s constitutional role to provide advice and consent on judicial nominations and uphold the Judiciary Committee’s longstanding ‘blue slip’ policy…This is the same policy that was strictly enforced, at the request of Senate Republicans, throughout President Obama’s eight years in office. To weaken it now—and remove the last meaningful check on President Trump’s power to unilaterally pack the judiciary—would further politicize the courts, erode judicial diversity, and undermine public confidence in the judiciary’s ability to provide fair and impartial justice.”
- As has become ubiquitous, advocates of whatever the Democrats’ latest plan of action is, consistently invoke the bromide about “the fundamental survival of our Democracy.”
- Like President Biden, Senator Bennet later lent his support to efforts to dispense with the filibuster.