In late November of 2013, Senate Democrats invoked the so-called nuclear option in an attempt to finally break the stranglehold Republicans had on advancing President Obama’s judicial nominees and other high-level appointments. The idea was that by requiring most judicial nominees to advance with a simple majority vote, the years of Republican obstruction of the federal courts would start to ease.
Although Republicans were to blame for blocking a historic number of federal judicial nominees, Democrats may be to blame for advancing some of the most questionable ones thanks to their insistence on abiding by the “blue slip rule.” The blue slip rule is a tradition whereby judicial nominees require approval from their home state senators before their nomination can advance. The way that approval is expressed is in the form of a blue slip, which the senator returns to the chairman of the judiciary committee, in this case Sen. Patrick Leahy (D-VT). Effectively, that means a senator can block a judicial nomination from their home state, like Republican Sen. Marco Rubio (FL) did with Judge William Thomas, an openly gay Black judge from Miami who was nominated for the Florida district court bench and whom Rubio had earlier supported. Or, as is the case with the nomination of Judge Michael Boggs, the blue slip requirement can effectively force the nomination of an ideologue.
Judge Boggs, who currently sits on the Georgia Court of Appeals, is a former state lawmaker in Georgia with a history of advancing regressive anti-choice and anti-civil rights legislation. Pro-choice and civil rights groups strongly oppose Boggs’ nomination, and the only reason he appears headed for the federal bench is because of the blue slip tradition and Republicans’ willingness to play games with judicial nominations. The Georgia federal courts, generally, and the 11th Circuit Court of Appeals in which Georgia sits, specifically, are among those listed as judicial emergencies, due in large part to a failure by Republicans to confirm judicial nominees like Jill Pryor to the 11th Circuit. In exchange for an end to the filibuster of the Pryor nomination, Republicans demanded a deal on President Obama’s other nominees to the federal bench in Georgia and put forward Boggs as one of their preferred choices.
Like the filibuster, the blue slip rule is not a constitutional requirement; it can be changed by the Senate and has been in the past. In 2003, when Republicans controlled the Senate Judiciary Committee, then-committee chair Orrin Hatch (R-UT) abandoned the blue slip rule and instead required the administration to engage in a pre-nomination consultation with both home state senators.
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All that means is that Democrats in the Senate, and Sen. Leahy specifically, could prevent Republicans from filling this federal judicial vacancy in Georgia with a blatantly anti-choice, anti-civil rights candidate with a simple rule change. Advocacy organizations have increased pressure on the Obama administration to withdraw the Boggs nominee and are also urging Sen. Leahy to abandon the blue slip tradition. So far, Leahy has reportedly refused to consider getting rid of blue slips, despite his otherwise strong record on civil rights and matters of reproductive choice. And given the demographic shifts afoot in Georgia and the fact that in the coming years the federal courts there will hear cases on state-level abortion restrictions, immigration reforms, voting rights, and a host of other issues important to the jurisdiction, the idea that Democrats are willing to advance Boggs’ nomination undercuts both the gains from filibuster reform and their own political agenda.
The progressive site CREDO Action has a petition up asking Leahy to end blue slips and “[s]top allowing Republican senators to blackball pro-choice judges.”