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The New York Times editorial board is calling on Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) to reform the Senate’s “blue slip” tradition whereby a senator can block a federal judicial nominee appointed to a court in his or her home state as a matter of senatorial courtesy.
The Times wrote in an editorial Monday that blue slips should be used to raise objections to a nominee but not be permitted to sink one entirely, something that happened to Judge William Pocan, whom President Biden nominated to serve on the U.S. District Court for the Eastern District of Wisconsin in December 2021.
Sen. Ron Johnson (D-Wis.) blocked Pocan’s nomination by refusing to return a blue slip to Durbin despite numerous attempts by Durbin’s staff to contact the conservative senator.
The Times wrote Monday that Durbin could have moved Pocan’s nomination anyway but ultimately decided not to.
“There is no rule or law that prevented him from sending it to the Senate floor for final approval. The only barrier was Mr. Durbin’s interpretation of an archaic Senate tradition of courtesy that allows senators to effectively veto federal district judge nominations from their own state for any reason or no reason at all,” the paper wrote.
The Times wrote that the “home-state veto power is a fundamentally undemocratic practice that gives far too much power to individual senators.”
It noted that Durbin could “unilaterally end this blue-slip custom at any time without requiring any kind of vote or radically upending an important Senate practice” and that “it’s far past time for Mr. Durbin to do so.”
The editorial board wrote that Republicans have worked for years to turn the entire judicial selection process into a proxy war for their ideological goals and that now appointing judges will be Biden’s “most important task for the next two years.”
It pointed out that for much of the 20th century until about 1955, home-state senators could object to home-state judicial nominations but not kill them. That changed when the late Sen. James Eastland (D-Miss.), a segregationist, strengthened the blue slip objection in order to stop federal judges from integrating schools in the South.
When then-Sen. Joe Biden (D-Del.) chaired the Judiciary Committee in the late 1980s and 1990s and when the late Sen. Edward Kennedy (D-Mass.) chaired the panel in the late 1970s, they did not allow senators to veto nominations by withholding blue slips.
Senators could raise an objection by refusing to return a blue slip, but doing so would only be considered as an advisory opinion and not viewed as a veto, according to the Times.
“That’s a process that Mr. Durbin should reinstitute. A senator who doesn’t want to seat a judicial nominee should step up and explain why and allow colleagues to evaluate the objection,” the editorial board wrote.