Under the Senate Judiciary Committee’s “blue slip” process, a judicial nominee typically will not receive a hearing unless both of the nominee’s home state senators agree to let that hearing move forwards. Thus, a single senator can effectively veto any judicial nominee from their own state. Indeed, there are currently two open seats on the Fifth Circuit that President Obama will likely never be able to fill, unless Senate Judiciary Chair Pat Leahy (D-VT) agrees to suspend the blue slip requirement, because Obama needs Ted Cruz’s permission to confirm anyone to these seats.
So the natural consequence of this blue slip requirement is that states that tend to elect Democratic senators will have more liberal courts while states with Republican senators will have conservative judges. Indeed, the blue slip rule has enabled Republican senators to pressure Democratic presidents into nominating conservative judges to circuit judgeships in their state — as the senators have the power to veto anyone nominated to that seat by a president of the opposite party. A majority of the active judges on the Eleventh Circuit were appointed by Presidents Clinton or Obama, but the court remains very conservative thanks to the blue slip’s power to force presidents to name compromise nominees. Similarly, the Tenth Circuit’s active bench is evenly split between Democratic and Republican appointees, but an Obama-appointee named Robert Bacharach recently sided with conservatives in a major birth control case that is now being heard by the Supreme Court. Judge Bacharach joined the court with conservative Sen. Tom Coburn’s (R-OK) enthusiastic support.
Combine the blue slip’s ability to move red state courts to the right with Casey‘s vague standard, and that means that the states that are most likely to enact restrictive abortion laws are also the states that are least likely to have judges willing to overturn those laws. As appellate courts typically rely on randomly drawn three-judge panels to decide cases, it is still possible to draw a liberal panel in a conservative court or vice-versa — but that does nothing to change the fact that a woman in California is overwhelmingly more likely to have her case heard by a pro choice panel than a woman in Texas.