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With Feinstein Replacement Effort Obstructed, Dems’ Path Forward Is Unclear

A dozen Biden judges are awaiting a vote from the evenly split Senate Judiciary Committee.

Senators Susan Collins and Dianne Feinstein en route to Senate Chambers for a series of votes in the U.S. Capitol Building on May 11, 2022, in Washington, D.C.

Sen. Susan Collins of Maine said Monday that she will not support an effort to temporarily replace Sen. Dianne Feinstein on the Senate Judiciary Committee, effectively sinking Democratic hopes of breaking a tie on the panel that has helped Republicans blockade President Joe Biden’s federal judge nominees.

Collins (R-Maine), a self-styled moderate who has played a decisive role in the far-right takeover of the nation’s federal court system, called the push to replace Feinstein (D-Calif.) as she recovers from shingles — something the senator herself requested last week — part of a “concerted campaign to force her off the Judiciary Committee.”

“I will have no part in it,” Collins added.

Collins was the latest Republican senator to express opposition to temporarily replacing Feinstein, a move Democrats were expected to attempt this week via the unanimous consent process — which was always a longshot given that any single senator could sink the effort.

Now it also appears highly unlikely that Democrats will be able to get the necessary 60 yes votes for a potential Feinstein replacement, with Collins joining Sens. Tom Cotton (R-Ark.), Thom Tillis (R-N.C.), Marsha Blackburn (R-Tenn.), and others in opposition.

While Collins framed her objection to replacing Feinstein as a show of respect for the longtime senator — even though the obstruction goes against Feinstein’s stated wishes — other Republicans made clear that they simply want to keep stonewalling Biden’s judicial nominees.

“I will not go along with [Senate Majority Leader] Chuck Schumer’s plan to replace Senator Feinstein on the Judiciary Committee and pack the court with activist judges,” Blackburn, a member of the Senate Judiciary Committee, wrote in a social media post earlier Monday. “Joe Biden wants the Senate to rubber stamp his unqualified and controversial judges to radically transform America.” (Blackburn had no problem voting to confirm unqualified and highly “controversial” judges nominated by former President Donald Trump.)

Along with Feinstein’s indefinite absence from the Senate Judiciary Committee — which has left the panel deadlocked at 10-10 — the Democratic leadership’s continued adherence to the antiquated “blue slip” tradition of giving senators veto power over nominees for federal court seats in their home states has ground the judge confirmation process to a halt.

Earlier this month, Sen. Cindy Hyde-Smith (R-Miss.) announced she would not return a blue slip for Scott Colom, a Biden U.S. district court nominee who had bipartisan support. Under current norms upheld by Senate Judiciary Committee Chair Dick Durbin (D-Ill.), Hyde-Smith’s opposition is enough to sink Colom’s nomination.

“If you want an example of how one side plays to win and the other does not, look at how Durbin refuses to get rid of blue slips — handing Republicans a unilateral veto of Biden’s judicial picks — while Republicans won’t so much as let an ailing Feinstein be replaced temporarily,” said Brian Fallon, executive director of the advocacy group Demand Justice.

There are currently 58 vacancies on U.S. district courts and six on circuit courts, according to Demand Justice chief counsel Christopher Kang. The American Constitution Society noted earlier this month that “the Senate has made limited progress on judicial nominations in recent weeks, with only three confirmations since March 16.”

“As of April 6,” the group observed, “there are still 18 Article III nominees pending on the Senate floor, waiting for cloture and confirmation votes.”

A dozen Biden judges are awaiting a vote from the evenly split Senate Judiciary Committee, in which a tie means a nominee does not advance.

The consequences of failing to fill vacant lifetime federal court seats could be disastrous, given the Republican Party’s willingness to abandon Senate norms to ram through extreme judges whenever they get the opportunity. During Trump’s four years in office, the Republican-controlled Senate confirmed more than 230 federal judges — a recent record that appears safe given the slowing pace of Biden judicial confirmations.

With the Feinstein replacement effort all but dead, the path forward for Democrats is unclear.

Feinstein is facing growing calls to resign from the Senate entirely, which would allow California’s Democratic Gov. Gavin Newsom to appoint a replacement who would serve through 2024. That replacement would still have to win Senate approval to sit on the judiciary panel.

“Whatever deal Democrats negotiate — if any — they should make no promises about keeping the ‘blue slip’ tradition that gives individual senators what amounts to a veto over prospective judicial nominees from their home states,” columnist Jill Lawrence wrote for The Bulwark on Monday. “It’s not a law. It’s not in the Constitution. Biden, when he chaired the Senate Judiciary Committee, used blue slips to assure consultation but considered them advisory, not binding.”

Sarah Lipton-Lubet, president of the Take Back the Court Action Fund, told Lawrence that Democrats “have a responsibility to do everything they can to rebalance the judiciary and dilute control” of Trump judges, who have worked to gut abortion rights, weaken gun regulations, and protect polluters.

“There are few things more urgent for the Senate to do than fill these open seats,” said Lipton-Lubet.

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