President Biden campaigned on ambitious reforms to the criminal legal system. Among these promises were key proposals like expanding the use of the President’s clemency powers, reorienting federal prosecutorial priorities, and decentering carcerality in the Federal system. His administration has also promised the public a new focus on white collar and corporate crime as part of a fundamental shift towards systemic accountability instead of individual punishment. Yet, more than a year into Biden’s presidency, many of these promises remain unfulfilled. His Department of Justice (DOJ) – a key tool in the fight for meaningful legal reforms – remains pockmarked by Trump-era officials and lacks the permanent progressive leadership integral to successful reform efforts. U.S. Attorneys’ offices, in particular, remain limited by the standing lack of nominations, confirmations, and stable leadership that persists over a year after President Biden’s inauguration.
Prosecutorial Reform and the Office of the United States Attorneys
The Office of the United States Attorneys has 94 offices (led by 93 Attorneys) across the U.S., Puerto Rico, Guam, Virgin Islands, and the Northern Mariana Islands. A U.S. Attorney is appointed to every district by the president to a four-year term. Each of these officials function as the top federal law enforcement officer in their district with significant latitude over policy implementation within its borders. The Revolving Door Project highlighted last year the incredible individual authority U.S. Attorneys have to set prosecutorial priorities within their districts. That includes the ability to refuse to pursue certain kinds of cases like low-level crime, shift sentencing recommendations, and prioritize historically under-prosecuted crimes such as police and white-collar misconduct. Though they are beholden to policy made in D.C., U.S. Attorneys have significant leeway over the district-level realization of policy and political end goals. This broad authority makes these offices another critical avenue through which President Biden, independent of Congress, can and must take significant steps towards implementing his reform agenda and to realize a more equitable and just legal system.
For too long these offices have been dominated by tough-on-crime BigLaw vets who have targeted, over-prosecuted, and over-imprisoned Black, brown, and low-income communities. While throwing resources at the creation of the carceral state, these same individuals have all but ignored the far more systemic violations of white collar and corporate crime, police misconduct, environmental violations, and more. To meaningfully redress the racism and classism inherent to this system, it is necessary to appoint a fundamentally new class of prosecutors who are willing to shift these offices’ considerable resources to new priorities.
U.S. Attorneys also have the ability to participate in and pursue civil matters, making them potentially consequential allies in presenting additional pathways to the pursuit of student debt relief, civil and voting rights, protecting the right to protest and more. This expanded legal authority further emphasizes the reach these offices can have, for better and for worse.
Despite the incredible power of these offices, and the clear need for the elevation of bold progressive reformers throughout the country, Biden has only nominated 43 people to these positions, leaving many districts with active or interim officials who are generally more inclined to take a business as usual approach to their implementation of office leadership. Of those 43 nominees only 31 have been confirmed, thanks in part to Senate Republicans holding hostage some votes on nominees for various inane reasons. Senate Republicans have also seemingly stalled additional nominations via a fraught and archaic consideration process that traditionally applies to U.S. Attorney positions and the federal judiciary. The “blue slip” process, as it is known, grants outsized power to home-state Senators and effectively provides them with arbitrary veto power over any proposed candidate for their state.
The Blue Slip Process
The blue slip process is theoretically meant to provide Senators a privileged avenue to weigh in on certain nominations for positions in their home states. Functionally, however, it has acted as an asymmetric political tool through which Republicans arbitrarily refuse to confirm Democratic administration’s qualified nominees. Meanwhile Democrats generally acquiesce to candidates in observance of Senate decorum, even when candidates fail to meet even basic standards for the positions to which they are nominated. This has created a defined imbalance between the political parties wherein Republicans exert extraordinary influence over the courts and the federal legal landscape no matter which party controls government.
While the weaponization of blue slips as a tool for forestalling progressive reform is of particular concern right now, it is not new. In fact, blue slips first became a common feature of the confirmation process during the 1950s, when the practice was suddenly mandated by Mississippi Senator, and notorious segregationist, James Eastland. Eastland used the process to effectively force contemporary presidents to nominate pro-segregation candidates to high level positions across the DOJ and the Judiciary and to actively hinder the local enforcement of racial justice reforms established by the landmark decision in Brown v. Board of Education in 1954.
Since then, it has continued to shape the state of the federal criminal system. During the Obama administration, almost 20 of President Obama’s judicial nominees were outright rejected or abandoned because one or both of the home state’s Republican Senators refused to return a blue slip for their nominations. Notably, these rejections were consistent with the practice’s explicitly racist roots. Several of these de facto rejections via blue slips were levied specifically against Black nominees for districts with large Black populations in states such as Alabama, South Carolina, and Georgia. This process led to multiple qualified Black nominees being denied Senate confirmation for no reason other than the whims, and biases, of these states’ conservative, overwhelmingly white, Senators.
Despite the precedent set by their continual rejection of nominees on an ideological basis during the Obama administration, Republicans quickly abandoned the practice for several judicial positions during the Trump era. Instead, Republicans took the opportunity to push dozens of lower court judges through the nomination process even amidst the emphatic protest of Democratic home-state Senators.
Blue Slips in the Biden Era
Although the weaponization of the blue slip process for judges has received significant attention, its role in U.S. Attorney confirmations has been comparatively overlooked. The consequences for this important arm of the federal criminal system, however, are also dangerous. Biden has begun the process of appointing a diverse slate of nominees to these offices, including at least one progressive leader, but the political minefield created by the blue slips process has led Biden to focus primarily on the easier political fight of appointments made in states with Senate delegations composed of at least one Democrat.
To date, Biden has nominated 43 individuals to the 93 national districts, with 50 (53.7%) seats still left entirely unaddressed by the President. Of the 43 who have been named by the White House, 34 (79%) come from Senate delegations with at least one Democrat, while just nine (21%) come from states with entirely Republican delegations. To contextualize, there are 43 U.S. Attorney districts located in states with two Republican Senators, meaning that Biden has only nominated leaders to 20.9% of districts in these states, contrasting heavily with his nominations to 73.9% of the positions in states with either entirely Democratic or mixed-party delegations.
The slow rate of nominations and confirmations to these critical positions is itself extraordinarily concerning. However, there is also extreme danger in this uneven distribution of nominees across the country. This practice creates a dynamic through which only some portions of the country are able to benefit from progressive changes to prosecutorial policy. To drill down even further, a continued reliance on blue slips will effectively allow Republican Senators veto power over federal criminal justice policy as it is carried out in their state, regardless of the desires of those within its various districts. Perversely these locales may be precisely those that most stand to benefit from federally-spearheaded reform; states with Republican Senators, who themselves are disproportionately white, are more likely to have large criminal systems that inordinately target and disenfranchise Black and brown communities. Of course, this perversion also corrupts the DOJ’s founding mission, which was effectively founded under President Grant precisely to protect the rights of Black people in the South during the Reconstruction era.
The progressive policy reforms that Biden was nationally elected to implement should not be limited to only those who live in a Democratic state. The roll-out of reforms should be national, equitable, and encompassing, and ultimately the federal landscape should reflect the candidate and the platform that won the presidency.
Democrats Need Bold Action
Democrats need to take bold action to protect people, and their reform agenda, from what is effectively a gross manipulation of a Senate tradition that is itself rooted in racist ideology. Already Democratic lawmakers have made clear that they are willing to do so for judicial nominations. They must act with similar resolve for U.S. Attorneys. Biden and Senate Democrats should fully abandon the blue slip process and deny Republicans the power to cynically and arbitrarily exercise veto power over the Biden administration’s priorities. In particular, Biden should ignore – if not outright repudiate – the input of such seditionists as Sens. Josh Hawley of Missouri or Ted Cruz of Texas. Biden can reject candidates that have found the favor of such shameless figures as these while still honoring the spirit of local consultation for these roles. Biden should seek out the counsel and advice of regional actors who have continually proven themselves to be advocates of the people in these districts. Democratic representatives who serve red states, such as Cori Bush in Missouri’s Eastern (U.S. Attorney) District, are particularly obvious candidates for such advice.
The candidates who were already vetted and approved by other anti-democratic delegations should also be reevaluated and confirmed to be committed to the policies and processes that Biden has set forth. For example, the candidates ostensibly vetted and supported by election-denier John Neely Kennedy and Trump-crony Thom Tillis should receive careful second consideration.
The Biden administration must also rid the DOJ of the five Trump (U.S. Attorney) holdovers who remain influencing the department’s policies and priorities. Already we have seen some of these officials wield the power of their offices in ways that run directly counter to the Biden administration’s priorities, such as in a recent case concerning student loan bankruptcy in Delaware. It bears repeating that the Trump administration subjected its appointees to ideological purity and loyalty tests. To be clear, anyone who not only won, but maintained, President Trump’s favor has no place exercising the incredible power of the U.S. Attorney’s office under Biden. Biden has the power to fundamentally alter the federal legal landscape and to reshape its standing predations into a more equitable, empathetic, and justice-oriented system. To get there, though, he has to choose this future over his maintenance of racist and archaic Senate traditions.
It’s an easy choice, why hasn’t Biden made it?
“Joe Biden at McKinley Elementary School” by Phil Roeder is licensed under CC BY 2.0