Sen Durbin mulls reviving tool that could stymie Trump nominees in another term

Senate Judiciary Chairman Dick Durbin, D-Ill., signaled his willingness to discuss bringing back a past Senate norm of allowing home state senators to nix judicial nominees they take issue with, as the potential of former President Trump being elected once again in November has become more evident. 

During a recent Judiciary Committee mark-up, Durbin responded to Republican frustrations over their inability to prevent certain circuit court judicial nominees in their state or region from moving forward, due to a lack of consideration for "blue slips," or the approval or opposition of home state senators. 

The informal tool was routinely honored by the committee chairman for decades before the courtesy ceased to be offered in 2017. 

"I'm ready to open this conversation and dialogue on a bipartisan basis," Durbin said last week. 

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"If we are going to do anything in blue slips on circuit court judges, I think there is one premise. We should do it prospectively, not knowing the outcome of an election that may change the presidency or may not," he explained. 

As the blue slip discussion is renewed, some have claimed Democrats are worrying about the fate of judicial nominations under another potential Trump term. Mike Davis, the former chief counsel for nominations to former Senate Judiciary Chairman Chuck Grassley, R-Iowa, called the idea "nonsense."

"Durbin fears Trump will win back the White House and Republicans will win back the Senate in November," he said.

"On the surface, it seems that Democrats are preparing to lose the majority and the White House," said Republican strategist Ron Bonjean, a former top spokesman to Senate Majority Leader Trent Lott and former chief of staff of the Senate Republican Conference, who likened it to an "insurance policy." 

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Durbin did not provide comment to Fox News Digital. 

As chairman, Grassley broke with a yearslong practice of honoring his fellow senators' blue slips during the Trump administration. He moved forward in 2017 with an appellate court confirmation hearing over the objections of then-Sen. Al Franken, D-Minn.

Grassley suggested at the time that Democrats were using the blue slip rule as a substitute for the filibuster, rather than for serious concerns. 

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The Iowa senator, who would be expected to be judiciary chairman once again if Republicans take the majority in November, may not be as interested in re-instating the rule as some other GOP lawmakers. 

"The blue slip process is a courtesy – not a rule – extended at the discretion of the Judiciary chairman," said a Grassley spokesperson.

"The vast majority of chairmen over the past century have allowed hearings on circuit court nominees without blue slips returned," the spokesperson added. 

Carrie Severino, the president of the Judicial Crisis Network, similarly noted the rule "has not been an absolute bar to considering the nominee."

"There are people who are trying to make this into more of a norm than it ever was," she claimed. "Only a couple [of] Judiciary Committee chairs in history actually treated this really strict[ly]."

According to Ryan Owens, a political science professor at the University of Wisconsin-Madison, the decision "highlights the uncertainty going into the election and likely Democratic weakness. It's unclear who will hold the White House in 2025."

He noted that Durbin's willingness to consider re-instituting the rule "appears to be a recognition that his party is limping into the election and Trump very well could win."

If accepted, "Durbin's offer may help Democrats slow a Trump presidency," he explained. 

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Sen. Thom Tillis, R-N.C., pleaded with his Democratic counterparts to support bringing the rule back as well as deferring to significant concerns aired by home state senators during the markup. "I think that most Democrats realize if the election were held today, Donald J. Trump would be president" and Republicans could score the majority in the Senate, he explained.

"And they're giving me nothing to motivate me to look out for them when the tables are turned next year," he said. 

There is notable disagreement between Democratic and Republican senators over which people and what party is responsible for the rule no longer being honored. Democrats have pointed to Grassley's move on circuit court nominees, but Republicans believe the trajectory started years earlier. 

Senate Judiciary Committee Ranking Member Lindsey Graham, R-S.C., asked his colleagues if they could at least agree that former Democratic leader Sen. Harry Reid charted such a trajectory when he got rid of the filibuster for most executive nominations. 

However, Sen. Sheldon Whitehouse, D-R.I., refused to agree. "No, I think the blue slip is a completely different thing," he maintained. 

Tillis stressed to his fellow committee members that Reid's action and Grassley's are "intrinsically linked."

In fact, Tillis told Fox News Digital in an interview that it truly was triggered by an event in 2003. "Chuck Schumer made a conscious choice of breaking away from the norms of the Senate and using the filibuster to start holding judges up," he said. 

Sen. Chuck Schumer notably broke with tradition to begin blocking judicial nominees that otherwise enjoyed majority support by using the filibuster at the time. 

A spokesperson for the majority leader from New York told Fox News Digital, "Senate Republicans ended the blue slip for circuit court nominations under Donald Trump," in reference to Grassley's decision.

Despite bipartisan interest, "it feels unlikely that they’re going to come to a resolution before the election," Bonjean said of the fate of the blue slip's return. 

Owens noted that "politicians are always skeptical of proposed ‘truces’ when offered by parties in weak positions."