It is time to end the obstruction against justice committed by Senate Republicans who first abuse the senatorial courtesy known as blue slips, which gives senators a voice in presidential nominations of federal judges, and then abuse the Senate filibuster rules, to obstruct confirmation of judicial nominees receiving high ratings from the American Bar Association and majority support from senators.
This contempt for justice by a growing number of Republicans began with scandals during the presidency of George W. Bush and White House tenure of Karl Rove, who politicized justice and corrupted U.S. attorney’s offices. It continues during the Obama presidency with extreme abuses of Senate rules and traditions in attempts to pack the courts by refusing to confirm highly qualified Obama nominees.
President Obama and the chairman of the Senate Judiciary Committee, Sen. Pat Leahy (D-Vt.), have respected this senatorial courtesy in good-faith efforts to honorably respect the views of all senators. But today a growing number of Senate Republicans are abusing this extra-constitutional and non-statutory blue-slip practice with a contempt for courtesy that obstructs the pursuit of justice. They prevent the confirmation of federal judges with one-senator or two-senator vetoes. They willfully and deliberately keep large numbers of judicial posts vacant. They do great damage to American justice and to all Americans. Their historically unprecedented tactics bring the Senate into widespread public disrepute.
When senatorial courtesy becomes contempt for the Constitution, which obstructs the administration of justice, it must end. If this abusive contempt of senatorial courtesy does not end promptly, the blue-slip practice should be ended.
With public disapproval of the Senate at historic highs, practices such as blue-slip and filibuster abuse, which have never so disfigured the Senate since Thomas Jefferson first wrote his rules and which constitute a procedural jihad against justice in America, can no longer be tolerated.
All who care about American justice should read the excellent and important materials from the Alliance for Justice regarding the state of the American judiciary and judicial vacancies and confirmations, and the brilliant scholarship by Russell Wheeler, a visiting fellow at the Brookings Institution, who explains the reasons for the large number of judicial vacancies and the magnitude of the blue-slip problem.
The abuse of the extra-constitutional and non-statutory blue slip and filibuster practices now violates the constitutional duties of the Senate, usurps the constitutional appointment prerogatives of the president, undermines the constitutional responsibilities of the judicial branch that requires confirmed judges, dishonors long-held traditions of the Senate and attacks the ability of all three branches of government to faithfully execute the laws of the land.
Extra-legal attempts to pack the court through secret holds, one-senator vetoes or filibusters run amok by radical-right partisans or Republicans who fear them have never been tolerated in our constitutional republic. America is premised on checks and balances that protect citizens against search-and-destroy partisanship or factional extremism that is alien to Americanism and reminiscent of anti-democratic nations that abhor the rule of law.
Justice for Texas should not be violated by judicial vacancies that exist because two Texas senators are competing to be the most obstructionist. Justice for Florida should not be violated because the state’s Republican Senator wants rightist support in a presidential primary. Justice for Kansas and Georgia should not be violated because Republican senators fear primaries, or would pack the court to serve partisan ideologies opposed by a majority of Senators and Americans.
Banana republic justice has no place in America. It is time to confirm the judges and uphold the rule of law.
Budowsky was an aide to former Sen. Lloyd Bentsen and Bill Alexander, then chief deputy majority whip of the House. He holds an LL.M. degree in international financial law from the London School of Economics. He can be read on The Hill’s Pundits Blog and reached at firstname.lastname@example.org.