Mark A. Lemley (Stanford Law School) has posted Red Courts, Blue Courts on SSRN. Here is the abstract:
The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.
This is a recent phenomenon; it was much less true even a decade ago.
It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.
And from the paper:
Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has two Republican Senators, they may simply not be willing to allow a vote on a Biden nominee. And because all the votes today are so close, they depend on at least one judiciary committee Republican vote and generally one or two floor Republican votes.26 Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. Blue slips have less power over appellate nominations, which don’t come from a single state. That is one important reason appellate courts are less divided than district courts. (Another is that presidents care more about appellate judgeships and so may be willing to fight harder to appoint people to the appellate courts even in hostile jurisdictions).
The blue slip procedure needs to go. It’s not clear it was ever a good idea to give individual senators that much power. But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.
Highly recommended.
