How to Stop a Senator From Blocking a Federal Judge
Feb. 6, 2023, 5:00 a.m. ET
The
editorial board is a group of opinion journalists whose views are informed by
expertise, research, debate and certain longstanding values. It is separate from the newsroom.
Last February, Senator Ron Johnson,
Republican of Wisconsin, abruptly decided to block a nomination for a federal
judgeship, though Mr. Johnson actually recommended the nominee just eight months before.
Why the reversal? It was never very
clear. Mr. Johnson said it
was because the candidate, Judge William Pocan of the Milwaukee County Circuit
Court, didn’t live in Green Bay, where the federal district is. But Judge Pocan
didn’t live in Green Bay when Mr. Johnson first recommended him and, at any
rate, offered to move to the city if he got the job. Was it because Judge Pocan
had something to do with the prosecutors’ decision to give low bail for a domestic violence
defendant who later drove his car into a Wisconsin parade,
killing six people? That’s what Mr. Johnson implied in his statement, though
that accusation would be false: Judge Pocan had nothing to do with the bail
decision and was unconnected to the case.
Or was it because Mr. Johnson later
learned that Mr. Pocan would have been the first openly gay federal judge in
Wisconsin? That’s what Mr. Pocan’s brother, Mark Pocan, a Democratic
congressman from the Madison area, charged in an interview,
accusing the senator of homophobia. Mr. Johnson denied it.
In the end, none of
these possible reasons, or the lack of them, really matter. Mr. Johnson refused
to give his home-state permission for the nomination to proceed — declining to
return what is known in the Senate as a blue slip — and the nomination stalled,
expiring at the end of the Senate term in January. The White House has not renewed it.
The chairman of the Senate Judiciary
Committee, Richard Durbin of Illinois, fumed about Mr. Johnson’s
decision at the time, saying he was disappointed by the
last-minute turnabout and noting that Judge Pocan had received nothing but
praise and high ratings from lawyers.
But in fact, there was nothing formal
that stopped Mr. Durbin from ignoring Mr. Johnson and proceeding with Judge
Pocan’s nomination. There is no rule or law that prevented him from sending it
to the Senate floor for final approval. The only barrier was Mr. Durbin’s
interpretation of an archaic Senate tradition of courtesy that allows senators
to effectively veto federal district judge nominations from their own state for
any reason or for no reason at all.
That home-state veto is a fundamentally
undemocratic practice that gives far too much power to individual senators, as
the editorial board wrote in 2014. Like the filibuster in
all its forms, it allows vital Senate responsibilities to be controlled by
small fractions of the chamber or even single members — powers never envisioned
in the Constitution. Democrats have used it to block extreme candidates from
Republican presidents when they were in the Senate minority. But as we noted in 2017, elections have consequences, and
there will be times when Democrats will have to accept unpalatable judges in
order for the Senate to operate along the principle of majority rule.
For now, though, it is Republicans who
will have to accept the consequences of their failure to regain the Senate last
November, and Mr. Durbin holds the power to make that happen. 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. That’s when President Donald Trump was the one
nominating judges and Republicans wanted no interference in their goal of
filling the circuit courts with conservatives.
It’s far past time
for Mr. Durbin to do so. Republicans have worked for years to turn the entire
judicial selection process into a proxy war for their ideological goals. Mr.
Trump allowed the Federalist Society to pick his judges as part of their
crusade to remake the federal courts, and the lack of home-state veto power is
one of the reasons the appellate bench now contains so many unqualified and extremist choices. When in
power, Republicans did their best to block President Barack Obama’s
nominations, which is one reason there were so many openings when the Trump
administration moved in.