Blue slip abuse will only make judge-shopping problem worse

Judge-shopping is the practice through which a plaintiff can virtually assure their case is heard by a particular (and hopefully sympathetic) judge by manipulating where the case is filed. Blue slips are part of the informal, historical practice of the Senate Judiciary Committee requiring the consent of home-state senators before the nomination of someone to a judgeship in their state can proceed. In a world limited to good faith actors, neither practice may be particularly problematic. But that, unfortunately, is not the world we live in. Litigants - particularly Republican state attorneys general and other conservative advocacy organizations - have repeatedly abused the ability to choose their judges by filing cases of nationwide import in single-judge divisions meant to serve local communities. And Republican Senators (more so than their Democratic counterparts) have shown little interest in letting a president of the opposing party appoint judges in their states, which threatens to grind the Biden administration's efforts to appoint highly qualified and diverse judges to the bench. On their own, each practice is deeply problematic and undermines faith in an impartial judiciary. But abused simultaneously and continuously, the consequences could be catastrophic for the rule of law.

Let's start with the basics of judge-shopping. Every state has at least one federal district court, and every district court--save for those in Guam and the Northern Mariana Islands--has at least two authorized district judgeships. Many states, particularly larger, more populous ones, have up to four district courts within their borders. California, for example, has Northern, Eastern, Central, and Southern district courts. Often those district courts have been further divided into smaller geographic divisions. Texas's four district courts have a combined 28 divisions, each responsible for some subset of Texas's counties. These local divisions are meant to provide to smaller, more remote communities the same access to justice afforded to larger, metropolitan areas.

All of that was dictated by Congress. But Congress left the division of business within those districts and divisions to the districts themselves. And for various reasons, some districts divide their business geographically, so that a case filed in a particular division will only be heard by the judges--or only judge--assigned to that division. This has the net effect of letting litigants choose one judge (and avoid others) by filing in one division and not another, so long as they otherwise meet the broader district's venue requirements.

The evidence suggests that this option is being abused by litigants looking for a judge predisposed to favor their side. According to data collected by Professor Steven Vladeck, the Texas Attorney General's office had filed 29 cases as of March of 2023 challenging various Biden administration policies. When 19 of those cases were filed, Texas knew with at least 95% certainty which judge they would draw. And it is not by coincidence that in each of those cases Texas knew they would get a judge appointed by a Republican President. For example, Texas filed suit in the Amarillo Division of the Northern District of Texas challenging the Equal Employment Opportunity Commission's guidance on sexual orientation and gender identity discrimination in the workplace. By filing in Amarillo (as opposed to, say, Austin, where the Texas Attorney General's office is located), it was assured assignment to Judge Matthew Kacsmaryk. In private practice, Kacsmaryk had opposed regulations permitting transgender students to use bathrooms consistent with their gender identities. Perhaps unsurprisingly, Kacsmaryk found the EEOC's guidance unlawful. Other conservative advocacy organizations have followed suit. The Alliance for Hippocratic Medicine could have challenged the FDA's approval of abortion drug Mifepristone anywhere in the country. But it, too, chose to file in the Amarillo Division, where it was predictably assigned to Judge Kacsmaryk. Kacsmaryk's anti-abortion beliefs are well-documented. Kacsmaryk likewise found the FDA's approval of Mifepristone unlawful, in a decision issued on Good Friday. This type of litigation gamesmanship undermines the rule of law and is deeply problematic. But political gamesmanship of another system--blue slips for judicial nominees--threatens to make it much easier and much worse.

A blue slip is just a piece of blue paper that the Senate Judiciary Committee uses to get the sign-off of home-state senators after someone is nominated to be a federal judge in their state. This long-standing norm is meant to incentivize consultation between the White House and home-state senators on judicial nominees, because the return of a blue slip usually signifies to the Judiciary Committee that the President received some input from the home-state senator before the nomination was made. Justification for the practice is really no more than that--senatorial courtesy. And yet, it's an incredibly powerful tool. Hearings are only scheduled for nominees who receive positive blue slips from both home-state senators. If a home-state senator either affirmatively opposes a nominee or simply withholds their blue slip all together, the Judiciary Committee will not hold a hearing for the nominee and, for all intents and purposes, the nomination is dead in the water.

Whatever the arguments in favor of the practice, the clearest argument against it is that it is ripe for abuse. To date, Senate Republicans have returned only 20 blue slips for district court nominees (8 of which were from retiring Republican senators in Ohio and Pennsylvania, both of which have long-standing bipartisan nominating commissions). In stark contrast during the Trump administration, Senate Democrats returned 130 blue slips for district court nominees, allowing the administration to appoint over 60 district judges in states with at least one Democratic senator. Illinois Senator Dick Durbin, the Chairman of the Judiciary Committee, has faced mounting pressure from progressive organizations to abandon the practice, but he has shown no appetite for doing so. Durbin has said that he will continue to enforce the custom unless he determines that his colleagues "objections are based on the nominee's race, gender, or sexual orientation." In other words, he'll have to take the extraordinary step of publicly accusing one of his colleagues of discrimination. That strikes me as extremely unlikely.

The problem may soon come to a head for the Biden administration. As of Sept. 14, 2023, there are 9 future and 31 current district court vacancies without a nominee in states with at least one Republican senator, some of which have been vacant since the Trump administration. That leaves only 8 future and 6 current vacancies without nominees in Blue states. It's conceivable that by the end of the year, unless the pace of retiring judges picks up, Republican senators will hold an unchecked veto power over all remaining vacancies without nominees. To be fair, there has been some progress--Texas's Republican senators recently signed off on their first district court nominee. But 7 other vacancies remain. And if Republican senators adopt the same mindset they did towards the end of the Obama administration and look to hold vacancies open for a potential Republican president in 2025, litigants will no longer need to hunt for ideological outliers in remote, single-judge divisions--they'll have entire districts, if not entire states, at their disposal.

Take Texas as an example. Texas's four district courts have 52 authorized judgeships. Thirty are currently held by Republican appointees, 14 are held by Democratic appointees, and eight are currently vacant (with one Biden nominee). If Texas's senators so choose, they can hold those seats open and hope to increase their already substantial majority in the next Republican administration with more judges in Matthew Kacsmaryk's mold. And make no mistake--this is a bipartisan problem. Of the 23 active and senior judges on California's Northern District, only two (both senior) were appointed by Republicans. All seven active judges in the Western District of Washington were appointed by President Biden.

Each problem exacerbates the other. Single-judge divisions have proven the value of appointing ideologically reliable judges. To make them more accessible to litigants, senators need to keep more seats open in their states until a future administration, more to their liking, offers their own more ideologically reliable nominees. Senators from the other party will respond in kind, and lather-rinse-repeat until we're left with two separate systems: one for conservative litigants in Red states, and one for liberal litigants in Blue states. It's hard to imagine something more antithetical to the rule of law than that.