“I certainly share the [Congressional Black Caucus’] concerns.”
It wasn’t the most pointed statement House Democratic Whip Steny Hoyer could have made but it placed him firmly on one side of a roiling debate over whether Republicans should be able to shape the judiciary even when they control neither the White House nor the Senate. It also placed him at odds with President Obama.
The background here is that a relic of an old patronage system know as the “blue slip” process allows senators to unilaterally veto any federal judicial nominee nominated to a seat in their own state. Georgia Sens. Saxby Chambliss (R) and Johnny Isakson (R) wielded this process to pressure President Obama into a lopsided deal which will end in four Republican picks being confirmed to federal courts in Georgia, and only two Democratic choices becoming judges.
One of the Republican judicial picks defended Georgia’s voter ID law, a common form of voter suppression. Another voted to keep the Confederate battle flag as part of the Georgia state flag when he was a state legislator.
Shortly after Obama nominated the package of judges that resulted from Chambliss and Isakson’s use of the blue slip process, the Congressional Black Caucus became the locus of opposition to this deal. Rep. John Lewis (D-GA), a central figure in the Civil Right Movement who still bears visible scars from when he was beaten by segregationist police officers, is one of the leaders of the opposition to this deal.
So, by placing himself on the side of the Congressional Black Caucus, Hoyer is placing himself firmly against the White House’s decision to agree to this largely one-sided arrangement, and potentially at odds with the Senate traditions that make results like this possible. “The Senate,” Hoyer noted, “has customs and deference to the incumbent senators in any state – I understand that.” He added, however that “I would hope that Sen. Reid and Senate leadership would look to the best interest of the country and the broad spectrum of beliefs in the country represented on the bench.”
In the Senate, the person most responsible for this outcome — beyond Chambliss and Isakson, of course — is Senate Judiciary Chair Patrick Leahy (D-VT). As chair of the Judiciary Committee, Leahy has the power to waive or eliminate altogether the blue slip requirement. Indeed, when Sen. Orrin Hatch (R-UT) chaired this committee, Hatch permitted nominees to move forward so long as “the Administration  engaged in pre-nomination consultation with both of the home-state Senators.”
Senate Democrats as a whole are also far from powerless to block Chambliss and Isakson’s choices even if Leahy will not follow Hatch’s lead. Democrats can always vote to reject the Republican choices.