Mike the Mad Biologist

The U.S. Court of Appeals for the Fifth Circuit is the most right-wing federal court in the U.S.–and many of the worst decisions that ultimately are used by the Republican-dominated Supreme Court to enact conservative policies originate there. If Democrats are serious about judicial reform, a key piece of the puzzle is appointing more non-batshitloonitarian judges to the Fifth Circuit. Unfortunately, the head of the Senate Judiciary Committee has other ideas (boldface mine):

Durbin (D-Ill.) said during a committee markup last week that he’d entertain conversations around restoring the blue slip — which home-state senators could use to effectively veto certain nominees — but only if it is bipartisan and agreed to before Election Day. Such a deal would be a high-stakes gamble for both sides, since neither would know who would benefit from the policy change or if future leaders would honor it.

“If there’s any members of the committee that want to start an active conversation along those lines, I’d be glad to join it,” Durbin said. “If we are going to do anything on blue slips on circuit court judges, I think there’s one premise: We should do it prospectively, not knowing the outcome of an election that may change the presidency or may not. That is a fair way to approach it.”

Republicans signaled they’re willing to have the discussion. South Carolina Sen. Lindsey Graham, the top Republican on the panel, said in a brief interview in the Capitol that he hopes “we can find a way forward to have a little bit of a check and balance on the committee.”

Until 2017, Judiciary Committee chairs didn’t move circuit court nominees unless both home-state senators signed off on the candidate. But then-Judiciary Chair Chuck Grassley (R-Iowa) stopped honoring that precedent for circuit court nominees, accusing Democrats of using it as a makeshift filibuster.

After that, the Trump administration and Senate Republicans moved circuit court nominees over objections from Democrats. The Biden administration and Senate Democrats followed suit.

Restoring the blue slip would amount to a seismic shift in the White House’s and Senate’s ability to confirm judges and would restore a significant point of minority power. It would engender pushback from progressives, who have long bemoaned that Democrats should be doing away with all blue slips rather than restoring those already gone.

I get why Durbin wants to do this: he’s worried that Democrats won’t hold the Senate. But the problem is Republicans, under Grassley, have already demonstrated a willingness to ignore blue slips when they are inconvenient. There’s no reason to assume Lucy won’t pull the football away again.

Meanwhile, the only way to return the Fifth Circuit to a semblance of sanity would be to appoint more Democratic judges to that court. If blue slips are reinstated, there is no way that could happen, since the states in the Fifth Circuit all have two Republican senators (Louisiana, Mississippi, and Texas), and they would use the blue slip to block any Democratic appointees. As long as the Fifth Circuit is crazy, they will keep sending crap to the Supreme Court, and the reactionaries on the Court will use those decisions to enact conservative policies.