The question is what will Democrats do now that it is their turn again. In the past, Dick Durbin—a Democrat and the current chair of the Senate Judiciary Committee—has indicated that he would not tolerate a blue slip blockade from Republicans. And on Wednesday, a committee aide confirmed to me that Durbin “does not plan to defer to Republicans who don’t return blue slips on circuit seats.” Moreover, while Republicans preserved blue slips for district court nominees, Durbin won’t abide by that rule “if he feels it will be abused,” the aide said.
A burning question looms over all this progress: Will Biden’s judges really matter if the Supreme Court retains its 6–3 conservative supermajority? The answer is yes, with a caveat. No doubt, SCOTUS will continue to implement the Republican Party’s agenda from the bench. It will hobble Biden’s presidency however it can and overturn liberal precedent at an eye-popping rate. But desegregating the judiciary, flooding it with talented minds from marginalized communities, has its own inherent value. It brings fresh perspectives and insights, even if they must be expressed in dissent, that bolster the court’s legitimacy in an increasingly diverse country. And it builds up the backbench for future Supreme Court vacancies, developing a kind of progressive jurisprudence in exile. On top of all that, most federal cases are decided by the Court of Appeals. Biden’s judges are certain to have the final word on major disputes from time to time.
The road to rebuilding a sane federal judiciary runs long. It may take decades. But Biden, Schumer, and Durbin have momentum on their side. The most important takeaway from this past year of judicial confirmations may be this: After years of conciliation and unilateral disarmament, Democrats are finally playing hardball with the courts.