Fear not, Republicans!
The terror you experienced when Senator Harry Reid crafted his clumsily constructed nuclear solution to the logjam over judicial nominations can marginally subside. Brave Americans like Senator Marco *pauses… takes sip of water* Rubio have managed to single-handedly stand up for your right to not allow a qualified black, gay guy to preside over federal trials.
Huzzah! Just what the Framers never intended. Well, actually keeping blacks and gays off the bench is probably exactly what the Framers intended, but I mean they never intended a Senator to be unilaterally blocking judicial nominees. Enjoy one more arcane senatorial rule that has no basis in the Constitution, but nonetheless hamstrings our nation….
Judge William Thomas, a criminal court judge in Florida, was nominated to fill a district court vacancy in the Southern District of Florida. After Republicans whiffed on the lion’s share of judicial nominees last year, all those nominations (except that of Judge Robert Wilkins, nominated to the D.C. Circuit, whose nomination was explicitly carved out as a carry-over) lapsed. In a testament to D.C. efficiency, the White House then had to renominate all 55 individuals that never got their day in the Senate because of the dearly departed filibuster rule.
Or, more accurately, the White House renominated 54 of the 55 individuals. Left in the polar vortex was Judge Thomas, who got a “blue slip” courtesy of Senator Rubio. “Blue slips” are the colloquial name for a quintessentially senatorial procedure — quintessential in that it’s justified by a “collegiality” that doesn’t really exist — that allows senators to unilaterally block judicial nominees from their home state.
For those keeping track, currently 31 states have at least one Republican senator, so a concerted campaign of “blue slipping” could wreak havoc upon Senator Reid’s happy little nuclear option paradise, forcing another fight over Senate rules.
There is another Senate Judiciary Committee fight brewing over the use of “blue slips,” a tradition that gives senators de facto veto power over nominees from their home state. Rubio used the tactic to block Thomas.
“I will continue to honor the blue slip policy as it currently stands, but I hope that Republicans will not abuse this tradition and force me to reconsider,” [Senator Patrick] Leahy said in remarks in December.
And the subsequent hail of bitchy complaining on cable news.
Blocking judges for nakedly political reasons is uncouth, and the fig leaf that Senator Rubio found was the sentence Judge Thomas imposed in one hit-and-run case during the course of his nearly decade-long stint on the bench. Unfortunately for the senator, the prosecutor of all people sided with Judge Thomas:
A spokeswoman for Mr. Rubio said in a statement that there were concerns about Judge Thomas’s “fitness” for the federal bench. “Those concerns include questions about his judicial temperament and his willingness to impose appropriate criminal sentences,” the spokeswoman said.
Mr. Rubio, who after a long delay approved the nomination last week of another black Florida judge, took issue with Judge Thomas’s actions in two criminal cases. But in one of the cases, involving a sentencing in a hit-and-run, Mr. Rubio’s criticism was blunted by both the lead prosecutor in the case and the administrative judge for 11th Judicial Circuit criminal division.
Both of them wrote letters to Mr. Rubio, who felt the sentence was too lenient, saying that Judge Thomas acted fairly and well within the law.
Senator Rubio was also miffed that Judge Thomas protected the Miranda rights of defendants that were ultimately convicted. Why should they have had rights if they did it? Indeed.
Senator Rubio is just clutching at straws to get back his conservative bona fides, tragically lost when he started pushing the controversial idea that everyone of Mexican descent shouldn’t be rounded up and exiled. Making a punching bag out of a black and gay judge is a healthy start to getting back all-important presidential primary voters. But the question posed by this episode is whether any other ambitious senator (or for that matter any senator fearing a rightward primary challenge) will join the “blue slip” brigade. An avalanche is unlikely, but anyone hoping for a string of confirmations to alleviate the federal backlog in states with Republican senators should expect at least a couple nominations to run into a brick wall.
Start placing your bets on which nominee is the next to get their blue slip….
Judicial Nominees Start Over in Senate [The Blog of the Legal Times]
Rubio Withdraws Support for Gay Black Judge’s Nomination to the Federal Bench [New York Times]