President Biden Nominates First Judge in Double-Red State

Andre B. Mathis of Tennessee may not receive blue slips from the state's two Republican Senators.

To date, President Biden has only made judicial nomination in blue or purple states. Today, he made his first circuit nomination in a double-red state–that is, a state with two Republican Senators:

For example, the President's new nominee for the U.S. Court of Appeals for the Sixth Circuit, Andre B. Mathis, would become the first Black man—and the second Black person—to sit on the Sixth Circuit from Tennessee. The last time that a Black man was confirmed to the Sixth Circuit was 24 years ago.

Will Mathis receive blue slips from the state's two Republican Senators? It may not matter if the Committee chooses to bring the nominee up for a vote, without regard to the blue slips.

Comments

[Michael Masinter]

The republican controlled senate confirmed Trump nominees from double blue states over the objections of home state senators, so there’s no reason to think that the current senate will behave differently, especially since Patrick Leahy no longer chairs the Judiciary Committee. The senate will confirm if the 50 democrats support the nominee.

[Snorkle]

I’m afraid there are still too many Democrats who act like they don’t know what they’re dealing with, and thus are clinging to relics of a quainter time.

[Cal Cetín]

“Our side is too nice! We fail to reckon with the ruthlessness of [other side]!”

[You're not smart]

Snorkle(sic)

[Commenter_XY]

District court, not circuit court = The republican controlled senate confirmed Trump nominees from double blue states over the objections of home state senators

[Rev. Arthur L. Kirkland]

Perhaps Sen. Grassley can collect those unreturned blue slips and prepare a collage — maybe call it The Future Is Blue — as the Senate confirms Pres. Biden’s nominees.

[Bob from Ohio]

Blue slips are dumb, a practice best buried.

[bernard11]

On this we agree.

[Dilan Esper]

Yep.

[Lee Moore]

Not just dumb, but a bad thing. They create federal judicial monocultures in some States, encouraging alignment and dependency between the State’s political leaders and the federal judiciary in that State. A recipe for political corruption – which is why blue slips exist in the first place.

I confess I have forgotten what the Trump era Grassley / Graham policy was on blue slips. I thought they did not pay any attention to them, or the lack of them, for Circuit Court slots. But I thought they did pay some attention for District Court slots – certainly there were quite a few long standing California vacancies when Trump departed, I had assumed that was because of D Senator blocks.

But as Bob says – death to blue slips.

[Commenter_XY]

That is correct (blue slips) = I thought they did not pay any attention to them, or the lack of them, for Circuit Court slots. But I thought they did pay some attention for District Court slots

[Krychek_2]

Blue slips are a symptom of a larger problem, which is that under our totally bizarre polity it almost doesn’t matter which party is in the majority because one or two people have the ability to block pretty much anything.

I’m in favor of having checks in place to protect minorities, but at some point, if your side lost an election, you just have to acknowledge that the other side has the right to govern, at least until there’s another election. One single senator (or two, in the case of Manchin and Sinema) should not have that kind of power.

[John F. Carr]

There was a time when loyalty to the party was not the prime directive. Now we’re acting like a partiamentary system where parties rule and the sole purpose of an elected official is to add to the “R” or “D” tally.

[Lee Moore]

I’m in favor of having checks in place to protect minorities

Please elucidate.

you just have to acknowledge that the other side has the right to govern, at least until there’s another election. One single senator (or two, in the case of Manchin and Sinema) should not have that kind of power.

Please elucidate some more. What have Manchin and Sinema got to do with blue slips ? Manchin and Sinema only have power when and if there are 50 other Senators willing to vote the same way as them. When they decline to vote for elements of President Biden’s program, they have power simply because they then form part of the majority. When they choose to vote for other parts of his program, and for his judges, they have power again because they are again part of the majority.

What power is it that you think they shouldn’t have ?

[Krychek_2]

Manchin and Sinema have nothing to do with blue slips, but I started out by saying that blue slips are symptomatic of a larger problem, which is the ability of a small number of people to throw a monkey wrench into the process. And it’s not a matter of having 50 senators willing to vote the same way as them, it’s a matter of not being able to do much of anything without 60 senators on board. Since it is rare for either party to have 60 senators (the last time it happened was 2009-2011), in practice, much does not happen despite having majority support.

And before we get to my comment about being willing to protect minority rights, take a look at the overall picture of how the Senate works:

Small states can cancel out big ones, meaning the political minority already starts out with wholly disproportionate political power.

On top of that, it takes 60 senators to get much done, so it really requires a supermajority of a supermajority.

On top of that, any single senator can put a hold on nominations (and, in some cases, legislation), meaning any one senator effectively has a veto.

So the real question is just how much protecting does the minority need, and when does it cross the line from protecting the minority into abusing the majority? Majorities have rights too.

[Lee Moore]

Understood.

There seem to be a number of related complaints here.

1. That Senate representation is not proportional to population. Which is quite true. But that was part of the original federal deal. We, the sovereign State of Wherever, formally agree to surrender our sovereign power to the federal authority in this and that area, in return for us retaining this agreed slice of power in the federal system. The House was supposed to be the popularly elected House, and the Senate was supposed to be composed of each State’s “Our Guys in Washington.”

Many’s the contract that has an annoying clause or two that one party regrets after a while, especially if its bargaining position has improved since it signed the paper.

Moreover small States have become big States over time, big States have shrunk, and the party dominant in various States has flipped and flipped again. Look at the 1896 Presidential election map. It’s almost a mirror image of 2020.

2. As to filibusters, I have mixed views. Given that the Senate is not, does not pretend to be, and was not designed as, a national majoritarian structure, but rather as a structure to guarantee each state its agreed share of federal power, I don’t think that the argument that the filibuster is anti-democratic really makes much headway. The bigger question is whether the filibuster is actually a good thing, and produces better law and policy than would be the case without it. I suspect it’s on its last legs anyway, since if the Ds had, say 53 Senators, as the Rs had in 2019-21, Manchin and Sinema couldn’t block its deletion and it would probably have gone by now.

3. I don’t know how individual blocks work, but they clearly don’t work to stop the majority bringing forward legislation. On nominations, there’s the blue slip for judges, but sometimes senators seem to be able to place holds on executive branch appointments – no idea how that works. It seems to me a bad policy.

[Lee Moore]

[the filibuster] would probably have gone by now.

And, since it is mostly Ds these days that lament the filibuster’s existence, it’s worth pointing out that precisely because the Senate structure currently favors Republicans*, getting rid of the filibuster does not favor the Democrats.

On average (with the current partisan voting structure) the Rs shoud be expected to win a Senate majority much more often than the Ds. But they’re not very likely to win a 60 seat majority. So without the filibuster, the Rs are much more likely to be able to move the ball forward than the Ds.

And at present there’s a LOT of federal law that the Ds woud not want repealed or severely pruned. Starting with job protection for federal workers.

*not so much because of the very small States (which are fairly evenly divided) but because the Rs tend to win most of their States with modest majorities, while the Ds waste huge numbers of votes piling up majorities in California and New York. The Rs don’t waste much in Texas and Florida. But the Ds do.

[Krychek_2]

1. Yes, the Senate representing state legislatures was the original deal. However, in addition to the obvious fact that popular election of senators means the underlying rationale for it no longer exists, there’s the basic fairness question of why should a Wyoming voter’s Senate vote count eight times as much as a Californian? What makes the residents of the small states any better at picking good people than the residents of big states?

I start from the general premise that in a democratic society, most of the time the majority should get what it wants, and the remedy for it if the majority makes a mistake is another election in two or four years. You have checks and balances in the form of a strong Bill of Rights and an independent judiciary that removes some subjects entirely from the political process, and places limits on others. But this whole notion that the voters are too stupid/incompetent/evil/malicious to be trusted with political power is (1) insulting to the voters and (2) a violation of the basic right of self governance.

At this point, the Senate has basically become an institution whose primary function is to ensure that nothing happens. Not everyone thinks that’s a good idea.

[Lee Moore]

The whole constitutional structure of the United States rests on the basis that there is much more to “a republican form of government” than mere democracy. It has rights embedded into its Constitution, dug in deep against democratic tyranny.

So the basic fairness answer is that the USA is not a unitary democratic state, it is a federal state, with strictly limited enumerated powers, with democratic elements in its constitutional structure, and has never pretended to be anything else.

In the House, California has more than fifty times as many Representives as Wyoming, giving rough equality to the voting power of the voters in each State, but a huge inequality between the two States. But in the Senate it is the States that are equal, and the voters who are unequal.

From Wyoming’s point of view, this is fair because Wyoming folk do not want to be bossed about – in Wyoming – by Californians. The fact that there are many Californians is irrelevant to this. Wyoming accepts federal authority to the extent that, and because, it gets a slice of federal power that makes it more difficult for big States to boss it about than would be the case if Senate seats were apportioned proportionate to population. Just as California accepted that deal when it was a small State.

At this point, the Senate has basically become an institution whose primary function is to ensure that nothing happens. Not everyone thinks that’s a good idea.

True. But be careful what you wish for.

[Krychek_2]

And in 1789 you might have had a point. But following the Civil War, Reconstruction Amendments to the Constitution, the federal income tax, the rise of federal funding for states and municipalities, the New Deal and the Great Society, the incorporation of much of the Bill of Rights to the states, the idea that we are anything at all remotely resembling what the framers gave us is absurd.

We are a federal republic in much the same way that Betty Windsor rules England: In name only, with lip service being paid. My position acknowledges that reality, in addition to being a matter of basic fairness. (And how is Wyoming bossing California — by telling it that it can’t have national single payer health care — any worse than California bossing Wyoming?)

[Lee Moore]

And how is Wyoming bossing California — by telling it that it can’t have national single payer health care — any worse than California bossing Wyoming?

Cos “no, you can’t mandate a nationwide system and impose it on us, unless you’ve got the votes in the House and Senate” isn’t bossing at all. It’s the default when folk don’t agree – nada. No State imposes a rule on another State, or on its citizens. Nobody bosses nobody.

But Wyoming can’t stop California having its own single payer health care system. Or vice versa. This is a case of the absence of bossing. Each state does its own thing, unless the federal constitutional scheme for imposing laws on unwilling States is followed.

Whereas California having enough votes to pass a federal law requiring Wyoming to hop to – that really is bossing Wyoming. It must join in and pay for, and have its citizens enrolled in, a federal national single payer system. It makes Wyoming do what Wyoming doesn’t want to do. In Wyoming.

Think of the difference in bossing in scenario A and B.

A : Mr X asks Ms Y if she will go on a date with him. Ms Y says “No thanks” and goes home. Who’s bossing who here ? Ms Y gets her way and Mr X dos not get his way, but it would be strange to call her winning on whether they are going to go out, by settling for “no”, as a case of bossing.

B : Mr X asks Ms Y if she will go out on a date with him. Ms Y says “No thanks”. But Mr X says, “I’ve actually polled the office, and 75% of employees say you’re gonna have to go out with me. ” She says “Get a court order” He says “I did. Here it is – County Ordnance 801 – Keeping the Workplace Friendly, Order of Judge Thimblebrain.” He flips her over his shoulder and carries her off to his cave. Is there bossing going on here, would you say ?

[Krychek_2]

But some things only work, or work far better, at the national level.

Think of it this way: Your 100-property HOA negotiates a deal with a TV and internet provider that will save every homeowner 50% on their monthly TV and internet bill, but only if every property does it. The provider will only give that good deal if there’s 100% participation. So, the HOA promptly passes a rule that everyone in the HOA has to sign up with that provider. (Ignore for purposes of this hypo that the HOA is a private entity rather than the federal government because for the point I’m making, the dynamic is the same.)

There are two contrarian property owners who show up at every board meeting for the next two months to grouse about their freedom of choice, it’s not fair, and I don’t even use cable TV or the internet.

The question is should those two property owners be permitted to keep the entire rest of the HOA from getting a really good deal on cable and internet.

And that’s the question: If in fact single payer health care would be far more efficient than the crazy-quilt state and private system we’ve got now (and for purposes of this hypo please assume that it would be), should Wyoming be permitted to prevent the rest of the country from enjoying that efficiency?

(Spoiler alert: My answer to Wyoming would be that everything isn’t about you.)

[Lee Moore]

The question is should those two property owners be permitted to keep the entire rest of the HOA from getting a really good deal on cable and internet.

If that’s their legal right, absolutely.

As for your HOA, suppose the HOA rules are that aside from a list of expenditure types specified in the HOA agreement, the HOA can’t pass any rules obliging owners to pay anything extra, except by unanimous consent.

Is it OK with you that the HOA skips past that contractual limitation on its powers ? Good luck in court.

As for it being all about Wyoming, it’s not. It’s all about every State’s power to set its own rules and only have to abide by rules imposed from outside if they’re made pursuant to the HOA contract.

Just as Ms Y’s right to turn down a date isn’t just about her. It applies to everyone. Equally.

[Krychek_2]

Assuming that the rules can be repealed by less than unanimous consent, I would certainly do everything I could to get the rule requiring unanimous consent repealed. It basically means nothing can ever be done, no matter how necessary, because there will always be a contrarian or two who just says no. Which is what our federal legislative process is fast turning into.

Contrarians have their place, and may even deserve some protection, but there should be a limit on how much progress they can obstruct.

[Lee Moore]

Assuming that the rules can be repealed by less than unanimous consent, I would certainly do everything I could to get the rule requiring unanimous consent repealed.

Well, there you go. We are at one. Change the rules by following the rule for changing the rules. Though IIRC the 2 Senators per State is the only non-amendable rule in the Constitution.

Of course, practically, the other homeowners would try to bribe the standouts to go along with the scheme. Ditto Wyoming. Senators can be amazingly persuadable, especially when they feel ready to retire.

Though I have met some ornery old homeowners who would block the thing just to get even with the guy in No. 54, who parked in the wrong slot 23 years ago.

The grim reaper eventually solves this sort of thing. Though generally not for States.

[The Firebrand]

Life was hard. He had to make do.

[loki13]

I’m going to (slightly) disagree with the people who hate blue slips.

Blue slips from senators did have some use in the past. This may be difficult for many of us to remember, but there was a time when the judiciary overall, and especially the district court (DC) spots (these are the federal trial courts), were not completely politicized and partisan.

Which meant that when you were filling the DC spots for a state, the federal executive would seek the input of the senators from the state of the DC. The “blue slips” were the mechanical method of enforcing this consultation- the Senate, as a whole, enforced these prerogatives.

This meant that you should get input from the state itself- it wouldn’t just be Washington pushing its choices down the state’s throat. It did make sense. Especially with the DC choices.

…now, given how broken and partisan everything is in Washington, how dysfunctional and nationalized the Senate has become, and the idea that Executive can get pretty good input from the states … does it still make sense? Probably not, certainly not to the extent it did, and maybe not at all.