A Stupid Senate Tradition Could Force Obama To Put A Tea Party Judge On The Federal Bench


Until recently, Pennsylvania’s U.S. Senate delegation seemed all but certain to recommend that President Obama nominate a conservative attorney with close ties to former senator and presidential candidate Rick Santorum (R-PA) for a federal judgeship in that state. Home-state senators play an outsized role in choosing federal district court nominees within their state, so it is likely that Obama will follow this recommendation if it is made.

David J. Porter is Santorum’s former lawyer. He leads the Pittsburgh chapter of the Federalist Society, a leading conservative legal organization. He helped found a coalition opposed to Justice Sonia Sotomayor’s nomination to the Supreme Court, and he serves as a trustee to a tea party-aligned think tank that shares many of Santorum’s socially conservative views.

One essay published by this think tank, for example, argues against marriage equality — comparing it to a “special tax benefit” for high school athletic directors. Then it suggests that contraception is also objectionable. “The widespread availability of birth-control has disconnected human sexuality from its biological purpose, at least in the minds of many people (though not in their reproductive organs),” according to the think tank Porter helps lead. “For them, human sexuality no longer serves the public good of producing other generations of mature and responsible citizens; human sexuality is merely a private good, something that brings pleasure to individuals.”

The reason why a Democratic president would even consider nominating Porter to a seat on the federal bench is a Senate tradition known as the “blue slip.” A relic of a patronage system largely dismantled during the Carter and Reagan Administrations, the blue slip tradition allows home-state senators to effectively veto any judicial nominee to a federal judgeship in their state.

Armed with this unilateral veto power, Sen. Pat Toomey (R-PA) offered a deal — Democrats will get to choose at least three nominees to open judgeships in Pennsylvania, if Obama also nominates Porter. Toomey’s Democratic counterpart, Sen. Bob Casey (D-PA), is currently considering whether to sign off on this deal. As the Huffington Post’s Jennifer Bendery reports, progressive groups are currently lobbying Casey to convince him not to agree to this deal. MoveOn.Org also circulated a petition arguing that “David J. Porter is far outside the mainstream of American political and social values and he must not join the Western Pennsylvania District Court.”

The truth, however, is that Casey — and ultimately, the White House — are in a genuine bind. If Casey or Obama decide that Rick Santorum’s former attorney is too conservative to be nominated to the federal bench, Toomey could retaliate by refusing to allow anyone to be confirmed to a judgeship in Pennsylvania. And, so long as the blue slip procedure is in effect, there’s nothing either Casey or the White House could do to counter such retaliation.

That does not mean that nothing can be done to prevent this outcome, however. As Chair of the Senate Judiciary Committee, Sen. Patrick Leahy (D-VT) has the unilateral ability to eliminate the blue slip today if he chose to, though he has thus far refused to do so. Indeed, one of Leahy’s Republican predecessors, Sen. Orrin Hatch (R-UT), largely did just that when he was Judiciary Chair and George W. Bush was president.

So long as Leahy clings to the blue slip, however, deals like the one under consideration in Pennsylvania will always be a possibility. Indeed, Sens. Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) wielded the blue slip to obtain a lopsided deal where the White House nominated four Republican choices and only two Democratic picks to judicial vacancies in the state of Georgia. One of those nominees, Judge Michael Boggs, voted to keep the Confederate battle emblem on the Georgia state flag while he was a state lawmaker. He supported a “Choose Life” license plate that helped fund anti-abortion groups. And he opposed marriage equality — describing his vote against equality as “an opportunity to stand up for things that are common-sensical,” and a stance in favor of “Christian values.”