Tell our Senators: Shore Up our Judicial Branch

Call BOTH of your Senators.

Call Script

My name is __________. I am a constituent, and my zip code is _______. I am a member of Indivisible SF.

We are proud of the work you have done as Judiciary Committee members in helping modernize our judicial branch by confirming well-qualified, demographically and professionally diverse nominees. We urge you to keep that going. You have overcome Republican obstruction so far, but it is time to push Chairman Durbin to abandon the Blue Slip process, which today functions like a filibuster. Please don’t forget how quickly McConnell dispensed with it to push our judicial branch to the right. We urgently need a more balanced judiciary and are counting on you to expedite that valuable work.

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Background

In a democracy, the judiciary should reflect the public it serves. We appreciate how the Biden Administration and Democratic Senators have focused on pursuing that goal.

Research in the business world has shown that diversity can improve organizational decision-making and performance. In the courts, demographic diversity has a measurable impact on case outcomes in key areas of the law and on perceptions of fairness in the system.

Research on federal circuit courts shows that having diverse judges influences how other judges around them rule. These changes also begin to relect a changed understanding of the “reasonable person” standard that used to center on the white cis male perspective. Ques­tions of what is “reas­on­able” or not in regard to restric­tions on abor­tion, access to the polling booth, and so on may get very differ­ent answers depend­ing on one’s lived exper­i­ence.

President Biden prioritized making our judicial branch more reflective of our whole country and confirmed an unprecedented number of diverse judges so far by front-loading nominations that focused on courts with no Republican senators, and keeping the Democrats’ slim but united Senate majority together despite Republican opposition.

Given the popularity of this move to build a more diverse judicial bench, we can expect to see more Republican opposition.

A long standing process called “Blue Slips” has allowed Senators of a particular state to reject nominees they didn’t like. When used in good faith in the 20th century, it allowed Democrats to keep some unqualified nominees off the bench. However, in the McConnell era, it wasn’t used in good faith. Instead, Republicans leveraged it to install a record number of judges, reshape the judiciary, and push it to the right. Democratic Senators need to remember the origin of the Blue Slip, which The Nation's justice correspondent Elie Mystal reminded us "was invented by Mississippi Senator James Eastland…to give segregationist senators a tool for blocking judges who would enforce desegregation. They are literally a Jim Crow idea."

Blue Slips are like the filibuster: they allow a single senator from the minority party to obstruct the will of a popularly elected government. McConnell tossed tradition out the window when he was Majority Leader and managed to confirm a whole raft of partisan judicial activists. Democrats should not cling to tradition at the country’s expense.

We appreciate the determination President Biden and our Senators have shown so far in confirming well-qualified diverse judges. We need them to keep it going. 

References 

Recent News:

Biden nominates two more judges for western Washington, The Winchester Star, 7/20/22

Biden backs off anti-abortion judicial nominee — because GOP senator objects | Facing South, 7/19/22

Pennsylvania’s Judiciary Is Front And Center On President Biden’s Agenda | Pietragallo Gordon Alfano Bosick & Raspanti, LLP - JDSupra, 7/14/22

Biden smashes one-week judicial nominees record with 5 new picks | Reuters, 7/14/22

Biden's six newest judicial nominees include Hispanic, LGBTQ firsts | Reuters, 7/13/22

Biden nominates 5 new judges, but not Republican abortion opponent | Reuters, 7/12/22

Big Picture:

Diversity in Federal Judicial Selection During the Biden Administration | Brennan Center for Justice, 4/05/22

Biden’s first-year judicial appointments—prospects for 2022 and beyond. Brookings Institution, 2/2/22

Biden’s first-year judicial appointments—impact, Brookings Institution, 1/27/22

Can Biden Fix the Courts That Trump Broke? | The Nation, 4/19/21

Judicial Nominations — Alliance for Justice, AFJ, Judicial Stat Overview as of 7/21/22

Judicial Nominee Tracker — AFJ Federal Nominee Tracker

Judicial Vacancy Tracker — AFJ, Federal Vacancy Overview

Diversity of the Federal Bench | American Constitution Society, ACS 

Two Senators per State: A Recipe for Minority Domination | Second Rate Democracy

From Judicial Nominations — Alliance for Justice, AFJ,

From Diversity of the Federal Bench | American Constitution Society, ACS 

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