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McConnell Open To Eliminating ‘Blue Slips’ For Judicial Nominees

Gavel And Scales Of Justice

Senate Majority Leader Mitch McConnell appears ready to get rid of a long-standing Senate tradition designed primarily to block judicial nominees:

WASHINGTON — President Trump is eager to put his conservative imprint on the federal judiciary, but an impediment remains.

Though the Senate has virtually eliminated the ability of the minority party to block appointments to the bench from the Supreme Court on down, individual senators can still thwart nominees from their home states by refusing to sign off on a form popularly known for its color — the blue slip.

Now, with some Democrats refusing to consent as the Trump administration moves to fill scores of judicial vacancies, Senator Mitch McConnell, the Kentucky Republican and majority leader, is for the first time publicly advocating that the blue slip be made strictly advisory when it comes to appeals court nominees — the most powerful judges after those on the Supreme Court.

“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” Mr. McConnell said in an interview with The New York Times for “The New Washington” podcast. He said he favored retaining the blue slip authority for lower-level district court judges.

With the conflict escalating, Senator Chuck Schumer of New York, the Democratic leader, has requested a meeting with Mr. McConnell and the top Republican and Democratic members of the Judiciary Committee to dissuade Republicans from weakening the blue slip.

“Getting rid of the blue slip would be a mistake,” Mr. Schumer said in an interview. He said he would argue to Mr. McConnell and Senator Charles E. Grassley of Iowa, the Republican chairman of the Judiciary Committee, that since majority control of the Senate has been in flux in recent years, members of both parties should remember that they could find themselves back in the minority.

“Preserving some of the minority’s power in the Senate has broad support because every one of us knows we’re probably going to be in some of each,” Mr. Schumer said.

The rising tension over the blue slip is just the latest clash in the long-running partisan war over lifetime judicial appointments — among the most important spoils of any administration. Long after an individual president is gone, judges placed on the bench are ruling in major federal cases.

Citing Republican obstruction, Democrats in 2013 changed Senate practices to end the 60-vote threshold for taking up judicial nominations, essentially allowing them to confirm judges on a simple majority vote. Earlier this year, Mr. McConnell led Republicans in taking that change one step further, eliminating the 60-vote threshold on Supreme Court nominees, culminating in the confirmation of Justice Neil M. Gorsuch.

But the blue slip practice — which is not a Senate rule but the prerogative of the Judiciary Committee chairman — remained in place. Because Democrats abided by it during Barack Obama’s presidency and Republicans refused to sign off on many of his nominees, his tenure ended with a large number of court openings that the Trump White House can now fill if it can overcome Democratic objections.

At the moment, there are 144 federal court vacancies, including 21 on the appeals courts and 115 at the district court level. Besides Justice Gorsuch, Mr. Trump has won the confirmation of three appeals court judges and two district judges. Forty-five nominations are pending — 11 for the appeals courts, and 34 at the district level.

A few of those nominations have already run into what is known in the Senate as blue slip trouble, including that of David R. Stras, a conservative favorite from Minnesota nominated by Mr. Trump in May to the United States Court of Appeals for the Eighth Circuit.

Senator Al Franken, Democrat of Minnesota and a member of the Judiciary Committee, earlier this month announced that he would not return his blue slip for Mr. Stras, citing a fear that he was too much in the mold of Justices Clarence Thomas and Antonin Scalia.

At the same time, Senators Ron Wyden and Jeff Merkley of Oregon, both Democrats, announced that they would not return a blue slip for Ryan Bounds, newly nominated to a seat on the Court of Appeals for the Ninth Circuit, because the White House had failed to engage in an existing judicial recommendation process in the state. Under the existing system, the decisions by the senators could permanently derail those nominees.

Equally worrisome to Republicans is the fact that many of the other appeals court openings are in states represented by either one or two Democrats, potentially giving them significant sway over multiple nominees despite their minority status.

In the end, there appears to be little justification for the “blue slip” process regardless of how long it has been around. The idea that a single Senator, or two Senators, from a particular state, can block a nominee simply be refusing to return a piece of paper is really quite absurd, especially in light of the fact that the Senate has abandoned the idea of filibustering judicial nominees at all levels, beginning with the process begun by Harry Reid in November 2013 and completed by the Republicans earlier this year when they lifted the filibuster for Supreme Court Justices. With that now the case, it seems absurd to say that one Senator can accomplish something that a minority of Senators cannot accomplish just because a particular nominee happens to be from their state.

Additionally, it’s worth noting that the blue slip is not nearly as long standing a tradition as the filibuster, which dates back to the early days of the Senate in some form or another. A report by the Congressional Research Service indicates that the blue slip has existed for only about a century and that it was not recognized for long periods of time during the period that followed. For more than forty years, a withheld blue slip did nothing to prevent the Judiciary Committee or the Senate from acting on a nomination. Indeed, the committee has only allowed the process to halt consideration of a nominee. Most recently, it was required that both home-state Senators fail to return the slip and, after 2003, the blue slip was only effective when the White House had not consulted with both Senators before naming a nominee. As a result, the idea that withholding the blue slip is a long-standing tradition of the Senate is simply without merit.

In the end, determining whether or not to end the recognition of the blue slip process is a prerogative of the Chairman of the Judiciary Committee and the Senate Majority Leader. Based on McConnell’s comments, it appears clear that he’s on board to getting rid of this archaic and dilatory procedural move, and one hopes that Chuck Grassley will be as well.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Turgid Jacobian says:

    The exceptional periods where it was least honored recently… Who was in charge? The regular periods where it was?

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