Democrats’ Endless Anti-Institutionalism

“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.”

According 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 nor 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.