Biden can advance racial justice, but only if Democratic senators ditch an old tradition

President Joe Biden has made clear that one of his administration’s top priorities will be furthering racial justice, and a critical pillar of any plan must be remaking our federal courts. However, much as the filibuster stands in the way of progress on a host of key legislative priorities, another, lesser-known Senate tradition weaponized by segregationists and today’s Republican Party could derail any serious effort at diversifying our courts.

Remaking the federal judiciary is critical for making serious progress toward racial justice on issues ranging from police violence to voting rights. While Americans often associate the courts with landmark civil rights decisions, the reality today is that our courts and former President Donald Trump's nominees to them are an obstacle to, not an ally of, racial justice movements. Trump’s judges are also the least diverse group in decades. 

A choice of custom or progress

Biden has committed to appointing diverse, pro-civil rights lawyers to the bench, and he has promised to nominate the first Black woman to the Supreme Court.

Even so, a Senate procedure known as Blue Slips could grind to a halt his efforts to remake our judiciary. Senate Democrats must now make a choice: Honor an arcane Senate tradition that has stood in the way of racial justice for decades, or discard it in the interest of moving our legal system toward the promise of equal justice under the law.

While little known outside the halls of Congress, the Senate’s Blue Slip tradition is one of the most important factors in deciding who does and does not become a federal judge in America. For decades, it has been used by opponents of racial justice to keep people of color and pro-racial justice judges off the bench. Much like its better known cousin the filibuster, it is a counter-majoritarian tool that was embraced by segregationists and now threatens our ability to make progress on contemporary racial justice issues.

The Blue Slip process requires both senators from a state where a judge would sit to approvingly return a piece of paper — the titular "blue slip" — before the nomination is considered. While it might sound innocuous, it has often been used to throw sand in the gears of progress on racial justice. Blue Slips as we know them were created by segregationists to block pro-civil rights judges in the aftermath of Brown v. Board of Education. Following the Supreme Court’s school desegregation decision, Mississippi Sen. James Eastland, an avowed segregationist and chair of the Senate Judiciary Committee, created a policy that would allow white Southern senators to quietly veto pro-civil rights picks for their home states without forcing their colleagues to take a public position.

As I advised President Barack Obama on judicial nominations, I saw many Republican senators follow the Eastland approach, vetoing dozens of highly qualified nominees and potential candidates — disproportionately lawyers of color and women — through the Blue Slip process. Democrats cannot let that happen again.

From 2009-16, almost 20 of President Obama’s judicial nominees were denied a confirmation hearing because of a negative or unreturned Blue Slip from Republican senators. All were either women or people of color, and the majority were Black. Republican senators, such as Jeff Sessions and Ted Cruz, also wielded their Blue Slips to veto many suggested Obama candidates, leaving many judicial vacancies without even a nominee.

The effects were especially damaging where Republican senators represent large communities of color. They used their Blue Slips to stop Black Obama nominees in states that included Alabama, Florida, Georgia, North Carolina and South Carolina. For example, President Obama’s nomination of Judge Abdul Kallon would have added much needed diversity to the U.S. Court of Appeals for the 11th Circuit, which has only one Black judge out of 12 (8%), while Black people are about 25% of the population in the states it covers (Alabama, Florida and Georgia). 

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Though most of Obama’s blocked judicial nominees might not be well known, last fall there was renewed attention on Myra Selby, a phenomenally qualified Black woman and former Indiana Supreme Court justice, who would have served on a court that now has only white judges –– ruling on cases in states where 30% of the residents are people of color. Republicans blocked her confirmation, and Trump instead nominated Judge Amy Coney Barrett, who cemented the circuit’s segregated status and quickly amassed a deeply troubling record on issues that include workplace discrimination before ascending to the Supreme Court.

Don't slow down Biden's courts push

Although President Obama’s nominees were blocked because of the Blue Slip tradition, Republicans bypassed it during both the George W. Bush and Trump presidencies for the powerful courts of appeals. They functionally abolished it altogether for Trump’s circuit judges, confirming 17 nominees who did not receive both Blue Slips. 

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Democrats now have a choice of whether to bypass the Blue Slip tradition or to continue allowing Republicans to play by different rules. The new Senate Judiciary Committee chairman, Dick Durbin, has declined to say, but there’s no time to waste. He and other Democrats need to show President Biden they will have his back as he seeks to diversify the courts. This also would signal to retirement-eligible judges in states represented by Republican senators that they will be replaced by qualified, diverse nominees if they do choose to retire.

With the urgency of undoing the damage of the past four years and making progress toward racial justice, Democrats must abolish Blue Slips altogether, for both circuit and district courts. As we seek equal justice under the law, Republicans such as Josh Hawley and Ted Cruz should not be given a veto over Biden’s judicial nominees.

Christopher Kang, chief counsel and co-founder of Demand Justice, oversaw the selection, vetting and confirmation of more than 220 judicial nominees as deputy  counsel to President Barack Obama and special assistant to the president for legislative affairs. Follow him on Twitter: @cdkang76