For all presidents, naming federal judges is one of the most critical ways they leave their mark on history. Donald Trump failed to keep most of his campaign promises, but there’s one he did — stacking the courts with young, conservative-minded jurists, 231 of them in all, including three Supreme Court justices.
Joe Biden is determined to rebalance the federal bench, not just with youthful liberals, but with a more diverse pool of nominees. Of the 97 judges confirmed by the Senate during his first two years, only five were white men. By contrast, almost two-thirds of Trump’s selections were pale and male.
But now Biden is facing two huge obstacles that threaten to derail this progress. The time is coming for decisive action — never Biden’s strong suit — on both fronts.
The first problem is Sen. Dianne Feinstein, the California Democrat who is 89 and in failing physical health. She’s been absent from the Senate for months now, and as a result, the Judiciary Committee, on which she serves, is deadlocked. And that enables Republicans to block some of Biden’s nominees from getting a floor vote.
“We need her,” committee chairman Dick Durbin of Illinois told CNN. “It is a challenge in the Senate Judiciary Committee to do our business.”
Democrats proposed replacing Feinstein temporarily on the committee, but Republicans, sensing blood, turned them down. The situation is very delicate; no Democrat wants to disrespect Feinstein, who has served honorably for over 30 years. But the costs are rising, frustration in Democratic ranks is boiling and voices calling for Feinstein to step aside are growing louder.
“Dianne Feinstein is Giving a Master Class in How to Ruin a Legacy,” reads one TIME headline. The New York Times editorializes, “If she cannot fulfill her obligations to the Senate and to her constituents, she should resign and turn over her responsibilities to an appointed successor.”
Biden’s other predicament is an ancient Senate custom called a “blue slip.” When a judge is nominated from a lawmaker’s home state, a notice is sent to them on blue paper. If the notice is not returned, the nomination is usually doomed.
Biden has already nominated 126 judges, most coming from states with Democratic senators. The remaining vacancies are mainly in red states, however, and if Republicans refuse to return their blue slips — and Democrats decline to jettison the custom — confirming additional judges could slow to a trickle.
This conflict has crystalized around the case of Scott Colom, a Black prosecutor in Mississippi who was nominated by Biden to a district court seat. Colom has the backing of Republican Roger Wicker, the state’s senior senator, and two former Republican governors, including Phil Bryant, who states, “I have known two generations of the Colom family for over 20 years and believe Scott Colom possesses the discernment to be a fair and exemplary judge.”
But the state’s junior senator, Cindy Hyde-Smith — one of the least distinguished lawmakers on Capitol Hill — has refused to return her blue slip for Colom’s nomination and is playing to the prejudices of Trump’s supporters by accusing the nominee of two specious infractions.
The first is that Colom, in his race for district attorney, took campaign donations from George Soros, the billionaire who has supported many liberal causes. Republicans regularly attack Soros as an all-purpose bogeyman in a despicable attempt to foment antisemitic tropes about rich, manipulative Jewish financiers. But
Colom has never taken direct contributions from Soros and has never even met him.
Moreover, the senator accuses Colom of supporting the participation of trans athletes on girls’ sports teams, but that, too, is false. All Colom did was oppose attempts by conservative lawmakers to ban gender-affirming therapies, which are widely supported by medical experts for transgender youths.
Democrats are right to be cautious about abandoning the blue slip custom, which can encourage bipartisan discussions and compromises over judgeship nominations. But Hyde-Smith has gone too far. She is abusing the Senate’s tradition of courtesy by pursuing an ideological crusade and unfairly accusing a well-qualified nominee — who also happens to be Black — of sins he did not commit.
The blue slip process is not carved in stone. As former senator Russ Feingold told the Associated Press, “Democrats would be chumps to say, ‘Oh well, we’re not going to do this because it’s a tradition.'”
It’s time for Biden to get tough — tough with Feinstein, who should be pushed, and with Hyde-Smith, who should be ignored. One of his most lasting legacies is at stake.
(Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at stevecokie@gmail.com.)
