Donald Trump has said thousands of offensive and dangerous things, but the one haunting me at the moment is merely annoying: his mocking putdown of former President Barack Obama for supposedly leaving Trump a gift of over a hundred judicial vacancies to fill. “I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that?” Trump asked in a 2018 speech in Ohio. “Maybe he got complacent.”
No, as Trump presumably knows, Senate Republicans got obstructionist. But the Former Guy’s badgering from five years ago is a warning to Senate Democrats today, especially as pressure mounts on them—including the ailing Sen. Dianne Feinstein—to keep President Joe Biden’s judicial confirmations speeding along.
For Democrats, meanwhile, Trump’s pell-mell race to confirm very conservative judges has made it a judicial emergency. They are racing to confirm more liberal judges—including an “unusually high numbers of public defenders, civil rights lawyers and labor lawyers,” according to NBC—while also seeking to bring more gender and racial diversity to the federal bench. “They have a responsibility to do every single thing that they can to rebalance the judiciary and dilute control” of Trump’s judges, Sarah Lipton-Lubet, president of the progressive Take Back the Court Action Fund, told me. “There are few things more urgent for the Senate to do than fill these open seats.”
I can’t imagine Feinstein disagreeing. But the California Democrat, at 89 the oldest sitting senator, has missed 58 floor votes since receiving a shingles diagnosis in February. Beyond this physical setback, several reports since late 2020 have described lapses that indicate a cognitive decline.
The Senate has no remote floor voting procedure Feinstein could use while she is recovering at home in San Francisco, and there is no timetable for her return to Washington or even certainty that she will return. And while she’s gone, most judicial nominations are indefinitely on hold in the Senate Judiciary Committee. They can’t advance without a majority on the committee, and without Feinstein there’s a 10-10 party split.
Whatever deal Democrats negotiate—if any—they should make no promises about keeping the “blue slip” tradition that gives individual senators what amounts to a veto over prospective judicial nominees from their home states. It’s not a law. It’s not in the Constitution. Biden, when he chaired the Senate Judiciary Committee, used blue slips to assure consultation but considered them advisory, not binding. And ditching blue slips is the only way to make sure Democrats’ brisk confirmation pace does not, as Lipton-Lubet put it, “grind to a halt.”