The New York Times editorial board published three op-eds across the Obama, Trump, and Biden presidencies on "blue slips", a Senate procedure that allows a Senator to block a president's judicial nomination if the nominee is from his or her state.
During the Obama administration, Republicans were in the minority in the Senate. The Times' editorial board advocated for the blue slip mechanism to be abolished. Under the Trump presidency, when Democrats were in the minority in the Senate and struggling to block the President's nominations, the Times spoke positively when Democrats used it. And now, under the Biden presidency, the Times is once again criticizing Republicans for using the procedure.
In an editorial published Monday, titled "How to Stop a Senator From Blocking a Federal Judge", the Times argued that Sen. Dick Durbin, D-Ill., should use his power as chairman of the Senate Judiciary Committee to unilaterally end the practice.
"He could unilaterally end this blue-slip custom at any time without requiring any kind of vote or radically upending an important Senate practice, just as Republicans decided to end it for appellate-level judges in 2018," the Times wrote.
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The editors lamented that Republican Sen. Ron Johnson used the blue-slip rule to block one of Biden's nominees and called it "an archaic Senate tradition".
However, early in the Trump presidency, the editorial board praised Democrats' use of the blue-slip rule as legitimate.
"Now that Republicans control both the White House and Congress, top party officials, including Mitch McConnell, the Senate majority leader, are itching to eliminate the last remaining tool the minority party has to influence a president’s picks for the federal courts — the so-called blue slip," they wrote at the time.
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They praised the procedure as "an incentive for moderation" and argued that Republicans who wanted to get rid of it were hypocritical because they supported it as a check against the Obama White House.
The piece was titled "A Hypocritical Battle Over Blue Slips". In it, the editorial board did concede, "Still, the blue slip is no longer the answer."
However, the editorial presented the practice in a much better light and criticized Republicans for considering abolishing it.
"Unlike their Republican counterparts, however, these Democrats provided a clear explanation for their opposition: The White House, they said, made no meaningful effort to consult with them before making nominations. Mr. Wyden and Mr. Merkley said Mr. Trump had completely bypassed Oregon’s well-established bipartisan selection committee," the editorial board wrote. "These are fair complaints."
"The Constitution gives the president the power to choose federal judges, but only with the ‘advice and consent’ of the Senate. In an earlier era of relative comity and good faith, the blue-slip tradition may have helped to ensure that advice was considered. But in this toxic, hyperpartisan age, there’s no simple way to force a president to listen," they continued. "And that is not a minor matter. Any president, not least one who lost the popular vote by almost three million votes, should take account of the wishes and concerns of senators of the opposing party."
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In 2014, the editors published a piece titled "The Senate's Discourtesy to Judges." In it, they slammed Republicans in Congress for using the tool as obstructionists and racists for using the tool.
"Now they hide behind a procedure that allows them to block able nominees because they want one of their cronies to get the job, or don’t want liberals or minorities on the bench or are afraid that any appearance of collaboration would rile the Tea Party," they wrote at the time.
