Judges, Redux

Back in March, I had a post about the ridiculous stagnation in confirming judicial nominees, not because the judges were unqualified; not because the Republicans were filibustering everything in sight; not because the nominees lost a vote; but because the Democratic Chair of the Senate Judiciary Committee, Patrick Leahy, was being too scrupulous by half in honoring the Senate tradition of "blue slips." The post recounted the use of the blue slip by N.C. Senator Richard Burr to block confirmation of an Obama nominee that Burr himself had earlier recommended.

Well, it seems like things have been going from bad to worse:

Even without the filibuster, the Republican minority still has tools to obstruct nominees. Vermont Senator Pat Leahy, the chairman of the Judiciary Committee, has reinstated the "blue slip" convention, which required the approval of at least one home-state senator for an appointment to proceed.

Both of these factors are relevant to the Boggs nomination. The deal to nominate Boggs came about because Senate Republicans had refused to permit nominees to Georgia district courts and the 11th Circuit Court of Appeals to advance. The blue slip practice then gave Georgia's two Republican senators substantial leverage of the appointments. The result was a deal that was ridiculously lopsided given Democratic control of the White House and Senate: 4 Republican picks in exchange for advancing two Democratic ones.

It wasn't bad enough that the Republican minority was using blue slips to block Obama's chosen nominees; now the Republicans are actively selecting nominees by holding other picks hostage until they get their guys on the bench. And all because Senator Leahy is a stickler for the "gentleman's agreement" of the blue slip, an agreement that doesn't seem to hold up so well when the Republicans are in the majority:

It's worth noting at this point that the blue slip is not any kind of formal rule; it's just a courtesy.  Abolishing the filibuster required a majority vote, but Leahy can stop adhering to the blue slip convention anytime he wants.  And it's clear that he should.  We could argue about whether the blue slip should be maintained if it was a genuine bipartsian norm whose maintenance would give Democrats leverage over judicial appointments the next time there's Republican Senate and White House. But it's overwhelmingly clear that this isn't the case. The last time Republicans controlled those two branches Orrin Hatch began to ignore the blue-slip convention, getting several Bush nominees confirmed without the approval of either home-state senator.

It seems like some Democrats may finally be getting sick of the lack of movement on judges, and the way the nominating process itself is being hijacked by the minority party, simply because of a courtesy that only Democrats seem to abide by. Senate Majority Leader, Harry Reid, has now said that he will vote against Obama nominee Michael Boggs, one of the judges nominated as a result of the Republican hostage-taking.

Senate Majority Leader Harry Reid (D-NV) said Wednesday he cannot vote for Michael Boggs, a controversial Obama nominee to be a federal judge who has faced fierce criticism from progressives.

"Unless I have a better explanation. I can't vote for him. This is a lifetime appointment. He's said some things and made some decisions I think are not very good," Reid told BuzzFeed. "Boggs is not somebody I’m going to vote for unless I have some explanations on why he did that deal with the rebel flag and things he's said about abortion."

Now maybe this is all posturing on Reid's point, making all the right noises to placate the progressive wing of the party while still allowing Boggs to be confirmed. But there is simply no reason at all for President Obama to continue to nominate, and Democratic Senators to vote to confirm the Republicans' judges for them. If the GOP wants to continue to stack the judiciary with ultra-conservatives, they can learn to adopt positions that will win them elections. Otherwise, it is time for the past two elections to have consequences, and for Senator Leahy to let the fucking majority rule.