During President Donald Trump’s four years in office, his administration was hyper-focused on the federal judiciary. All told, Trump managed to appoint 226 judges to Senate-confirmed lifetime appointments—nearly a quarter of the entire federal bench. Many of those appointees are unabashed partisans who will shape the law for decades to come.
Thus far, President Joe Biden has made clear his own ambitions to remake the courts, minus the slew of patently unqualified candidates championed by the Trump administration. Biden has moved quickly to nominate 13 candidates to the powerful federal courts of appeals, which are the last word on the law short of the Supreme Court; the Senate has confirmed six of them. Of Biden’s 38 nominees to vacant district court judgeships—the front lines of the federal legal system—13 have been confirmed. The professional profiles of these lawyers are just as notable: Far more have backgrounds in criminal defense and civil rights than did the nominees of Biden’s Democratic predecessors.
But despite this record of relative success, when it comes to the district courts, Biden’s judicial agenda is not distributed equally across the country. Out of those 38 district court nominations, 35 have come in states with two Democratic senators. The only exceptions are the three Ohio nominations announced last month.
This imbalance is due, at least in part, to an arcane feature of Senate tradition known as the “blue slip”: Both senators from any potential nominee’s home state must submit literal blue slips of paper to the Senate Judiciary Committee that signal their approval for the nomination to move forward. During the administration of President Barack Obama, Republican senators were able to quietly scuttle many nominations by simply refusing to return their blue slips. In other cases, the threat of an unreturned blue slip allowed Republicans to ward off nominations altogether.
Senate Democrats tried to do the same during the Trump administration. But unlike Senate Democrats, Senate Republicans weren’t willing to let a minority party stall their agenda and functionally eliminated blue slips for appeals court nominees. Democrats didn’t reinstate the practice when they took control of the Senate in January.
Senate Republicans did not, however, eliminate blue slips for Trump’s district court nominees. Why not? They may have simply been too busy packing the more powerful appeals courts to bother. Or perhaps they didn’t think they needed to, because Democratic senators did return blue slips for some of Trump’s district court picks. By the time Trump left office, the GOP-controlled Senate had confirmed 38 district court judges in states with two Democratic senators—about one-fifth of the total number of district court judges Trump confirmed.
Even so, the blue slip process’s existence is a big part of the reason that all but three of Biden’s district court nominees have come in states with two Democratic senators. Potential candidates who could earn the endorsements of, say, Texas Senators Ted Cruz and John Cornyn are not likely to be the kind of lawyers that Biden wants to put on the bench for life.
“The White House strategy up to this point has been low-hanging fruit,” said Jill Dash, Vice President of Strategic Engagement at the American Constitution Society, a liberal legal organization. “There’s a lot of work to do on judicial nominations before we get to any pitched battles.”
Focusing on blue states may be the way to get the greatest number of judges confirmed in the shortest amount of time. But it also means that for now, half the country is being left out. And some lawyers working in red states aren’t satisfied with a path-of-least-resistance approach.
“I think that that’s a cop-out. At some point, we have to take the fight to them,” Faudlin Pierre, a Miami-based civil rights attorney who practices in federal court, told me.
As someone who regularly argues cases before federal district judges, Pierre has seen the difference that having a judge with defense or civil rights experience can make. “It matters when you’re in practice, because they see the world a different way,” he said. “When it’s a close call, judges, like any other human being, go with their biases. They go with their life experiences. That’s why we need to have a more diverse judiciary.”
More Democratic-appointed judges in red states could also shift outcomes in the courts of appeals, Pierre said. “You need good intellectually competent judges to set the stage for the Eleventh Circuit,” he said, referring to the traditionally conservative appeals court that covers Florida, Georgia, and Alabama. “You need people at the bottom to say, ‘Here’s the roadmap and here’s the reasoning why you should affirm [the district court’s decision].’”
As Pierre notes, district courts are subject to review by the 13 federal courts of appeals, of which seven currently have a majority of Republican appointees who can overturn the decisions of more liberal district-level judges. This potential was vividly on display earlier this month in Texas: When a ruling by an Obama-appointed district judge halted the implementation of SB8, the controversial state law banning most abortions via vigilante enforcement, the conservative Fifth Circuit Court of Appeals stayed the injunction within days.
But that wouldn’t happen in every case, said Chris Kang, co-founder and chief counsel of the progressive judicial reform organization Demand Justice and a former Obama advisor on nominations. (Balls & Strikes is sponsored by Demand Justice.)
“District court judges handle a lot of cases, the vast majority of which are not even considered on appeal, much less overturned,” Kang told me.
To date, Biden’s team has been searching for workarounds to the blue slips impasse by negotiating with Republican senators to nominate compromise candidates for red-state judgeships, Dash said. But reaching this kind of consensus with Republican senators necessarily changes the lists of nominees that are produced. The administration is “not putting the same kinds of nominees in red or purple states as in blue states,” Dash said, though she added that “that doesn’t mean there’s no progress.”
The search for consensus has been most successful in states with only one Republican senator. The White House announced three nominees in Ohio last month, including a career public defender. In Wisconsin, Senators Ron Johnson, a Republican, and Tammy Baldwin, a Democrat, jointly recommended four candidates to the White House, including a public defender. Both sets of candidates were the products of bipartisan commissions in which both senators participated.
In states with two Republican senators, this sort of compromise procedure is off the table. But, Kang noted, states in which Republicans control the political system might be the ones where Democrats have the most to gain by moving aggressively.
“In a lot of these states with two Republican senators, they also have Republican governors and state legislatures that are going out of their way to disenfranchise people, with a disproportionate impact on people of color,” he said. “Those are the kinds of places where you especially want good judges who could apply the Constitution fairly, and yet we’re going to have greater vacancies or less good judges because of these blue slips.”
Recent developments in Florida, which is represented in the Senate by two Republicans, demonstrate how Republican obstruction can warp the nomination process. A commission led by Florida’s congressional Democrats drew up a list of potential nominees for two open district court judgeships in the state; a separate commission led by Republican Senator Marco Rubio drew up its own list in opposition. There were two common names between the lists: Detra Shaw-Wilder, a corporate lawyer, and David Liebowitz, a former federal prosecutor whose billionaire uncle is a major Rubio donor—hardly the stuff of progressive dreams.
Lawyers from more nontraditional backgrounds who made the Democrats’ list, like federal public defender Michael Caruso, were not included in Rubio’s picks. That means that absent blue slip reform, there’s no way for Caruso—or most of the Democratic picks for the Florida openings—to move forward. And since the Democratic commission selected their list of potential nominees in May, there’s been no movement on any nominations in Florida, Pierre said.
“There’s been nothing. And I’m just like, ‘Hey, we’re important too,’” he told me. “I don’t think that the administration appreciates the sense of urgency that we on the ground feel.”
Meaningfully reshaping federal district courts in red states would require that Senate Democrats ditch the blue slip—hardly a herculean task. When Republicans decided to get rid of it for appeals court nominees, they just stopped waiting for permission before moving ahead with the confirmation process. There’s no reason that Senate Judiciary Committee Chair Dick Durbin and his Democratic colleagues couldn’t do the same.
There is the possibility that if Democrats ditch blue slips, Republicans could have an easy path to putting more right-wing judges on blue-state district courts if they take power. But as with the filibuster, there’s no guarantee that Republicans wouldn’t ditch blue slips anyway if they become an obstacle to cementing the GOP’s already-iron grip on the courts. After all, they didn’t hesitate to get rid of it for circuit courts last time.
And in the meantime, lawyers in red states want all the help they can get. “This has to be a multi-front attack,” Pierre said “We need people at the front lines who can intellectually combat the nonsense that comes from the other end.”