Democrats are brushing off calls from the left to play hardball after Republicans invoked the “nuclear option” to speed up most of President Trump’s nominees.
The move to reduce how long it takes to confirm hundreds of picks sparked a flurry of angry speeches from Democrats who characterized the move as a “sad day” for the Senate.
The changes marked the second and third time Republicans have gone nuclear since Trump’s election, leaving progressive groups fuming over Senate Majority Leader Mitch McConnell’s (R-Ky.) tactics and annoyed at what they see as a lack of a response from Democrats.
{mosads}“It’s really frustrating to watch Democrats sort of acknowledge that this is a Republican power grab, which of course it is, and then not commit to doing anything,” said Chris Kang, the chief counsel for Demand Justice.
Outside groups have pressured Democrats to do more to make life difficult for Senate Republicans in response to the rule changes.
In one sign of potential behind-the-scenes pushback, Republicans are delaying the first vote of the week until Tuesday even though McConnell teed up six nominations on Thursday. Republicans normally have a Monday evening vote, but that would require sign off from Democrats to speed up the first nomination.
But Democrats also reached a deal with Republicans to hold a final vote on a district judge nominee on Thursday morning, who was ultimately supported by more than a dozen Democratic senators. If Democrats had wanted to, they could have forced Republicans to stay later on Wednesday night to do the vote.
The relatively smooth proceedings didn’t go unnoticed by Republicans. An aide for McConnell asked reporters to “thank the Democrats on your way out tonight for not forcing a bunch of votes.”
Democratic senators also are balking over calls to block the confirmation of district court judges from their own states by refusing to return “blue slips,” a sheet of paper that indicates if they support a nomination.
Republicans have confirmed judges to more powerful circuit courts without getting a blue slip from either home-state senator, a first for the Senate that has angered Democrats.
But Democrats aren’t willing to block district court nominees since blue slips are being honored in that process, giving them input on who the White House nominates.
Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) says he will honor the blue slip for lower-level district judges, whose jurisdiction is contained wholly within one state and whose rulings can be overruled at the appeals level.
Kang argued that by refusing to return blue slips on district court judges, Democrats could try to force Republicans back to the negotiating table on how the Senate handles circuit court nominations. At a minimum, they could keep additional Trump nominees from getting confirmed.
{mossecondads}“It could actually force the Trump administration to change its behavior or not fill these vacancies,” Kang said. “If Democrats withheld their blue slips for these 70 district court vacancies and refused to let Trump fill them, Republicans would have to come back to the table with some response.”
But Sen. Christopher Coons (D-Del.), a member of the Judiciary Committee, said such a proposal would be self-defeating.
“So hypothetically their great proposal is that we will hold vacant district court judgeships in our state?” he asked. “How does this make any sense?”
Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat, warned the tactic “makes no sense” if Democrats would be blocking judges they would otherwise support.
Sen. Tim Kaine (D-Va.) held up his hands when asked about the suggestion.
Sen. Sheldon Whitehouse (D-R.I.), who like Durbin is a member of the Judiciary Committee, also criticized the strategy.
“If I approve of a judge and my blue slip has been honored and I feel I’ve had an adequate voice, we’ve got a good judge, I don’t see why we shouldn’t have them appointed,” he said.
Republicans under Trump in February confirmed a circuit nominee for the first time without support from home state senators when they sent Eric Miller to the 9th Circuit. Neither Democratic senator from Washington provided a blue slip for Miller.
The Senate Judiciary Committee on Thursday approved two 9th Circuit nominations along party lines even after neither of the home-state senators from California — White House contender Kamala Harris and Dianne Feinstein, the top Democrat on the panel — returned a blue slip.
Sen. Mazie Hirono (D-Hawaii), another member of the panel, said the GOP’s decision to go nuclear is part of a McConnell plan to “get as many Trump judges with their really conservative right wing views onto the bench,” but hedged when asked about not returning a blue slip on district nominees.
“I’d like to see judges who we can’t tell if they’re Republicans or Democrats and we obviously need good judges, and if he actually nominates judges who can be that way then I would want them to get on the court,” she said.
Democrats warn there’s no guarantee that if they instituted an across-the-board ban on returning blue slips for district judges that Republicans wouldn’t nix honoring the precedent even on the lower-court picks, mirroring their actions on circuit court judges.
“Blue slips are a tradition, they’re not a rule, so if we stop returning blue slips there’s no guarantee the nominees won’t move forward,” Durbin said.
Sen. Roy Blunt (R-Mo.), a member of Republican leadership who co-sponsored the rules change resolution, said he was “very comfortable” about the GOP decision to use the “nuclear option” to cut down on the amount of debate time for district judges and most executive nominees.
“You know if they don’t want to get district judges in their districts I guess they have that option,” he said of calls for Democrats to stop returning blue slips for the nominations.
Graham went a step further, hinting that if Democratic senators stopped returning blue slips in an effort to keep Trump from filling the seats, he could change his mind on letting home-state senators essentially have a veto on who gets appointed to be a district judge from their state.
“I’ve helped the institution a lot. If it were up to me we would still have 60 votes,” Graham said. “But … if they want to abuse the blue slip process the blue slip process could go away.”