Editorials and Opinion
Blue slips & bipartisanship (Pittsburgh Tribune-Review [PA] , 09/18/17)
Glenn Sugameli, founder and head since 2001 of Judging the Environment (judgingtheenvironment.org), a nonpartisan federal judicial nominations project, Letter to the Editor: Current and former Republican and Democrat Senate Judiciary Committee chairmen explained the bipartisanship embodied in the home-state-senator blue-slip requirement for judicial nominees. This is why, as the editorial “Senate's blue-slip bounce: End this tradition” quoted me, “no circuit court nominees have been confirmed over the [blue slip] objection of one (or two) home state senators.”
All Senate Republicans supported blue slips in a 2009 letter, as did a 2015 Des Moines Register op-ed and a 2016 post-election statement from Chairman Chuck Grassley, R-Iowa. Sen. Patrick Leahy, D-Vt., said Grassley “told me he was going to follow the same procedures as chairman” and “has never broken his word to me” over three decades.
In a 2014 op-ed titled “Protect the Senate's important ‘advice and consent' role,” Sen. Orrin Hatch, R-Utah, stressed that “The blue slip process ... has greatly enhanced consultation and cooperation between home state senators and the White House. ... Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president's judicial appointment power. Anyone serious about the Senate's constitutional ‘advice and consent' role knows how disastrous such a move would be … ultimately produc(ing) a more politicized federal judiciary.”
EDITORIAL: Our view: Bounds and determined (East Oregonian, 09/15/17)
"In a letter to White House Counsel Don McGahn on Sept. 7, Merkley and Wyden wrote “unfortunately it is now apparent that you never intended to allow our longstanding process to play out. Instead, you have demonstrated that you were only interested in our input if we were willing to preapprove your preferred nominees ... disregarding this Oregon tradition returns us to the days of nepotism and patronage that harmed our courts and placed unfit judges on the bench.”
The reason home-state senators have blue-slip power is so they can easily scuttle extremist choices, and force those who nominate judges to choose candidates that garner bipartisan support.
Recently, however, the blue slips are being used in a hyper-partisan manner. That was the case when Republicans stopped Democratic nominees while Obama held office — and the tables have turned now. Democrats, despite Republican obstructionism, kept the rule in place. Republicans now want to narrow the rule, so their appointments (especially of circuit court judges) are harder to derail. It’s the same type of rule that allowed Republicans to stop Merrick Garland from having a hearing for a seat on the Supreme Court, which the GOP sidestepped to instead confirm Neil Gorsuch.... The push is toward even more extreme, politicized judges. Either side changes the rules at their own peril — no majority lasts forever and what may be to your short-term benefit could be to your (and the nation’s) long-term detriment.... Let Bounds be judged by a customary bipartisan nominating committee, have his résumé and judicial decision making tested and analyzed."
Editorial: A Hypocritical Battle Over Blue Slips (New York Times, 09/15/17)
"Now that Republicans control both the White House and Congress, top party officials, including Mitch McConnell, the Senate majority leader, are itching to eliminate the last remaining tool the minority party has to influence a president’s picks for the federal courts — the so-called blue slip.
This longtime but informal Senate practice allows a senator to block the nomination of a judge from his or her home state by refusing to sign off on a blue-colored form. The idea was to give senators, who are presumed to be more familiar with the lawyers and judges in their own states, a meaningful say in the choosing of those judges. It also works as an incentive for moderation in staffing the federal judiciary, which, as the only unelected branch of government, depends on the public trust for its legitimacy.... Back in 2009, Mr. McConnell and the entire Republican Senate caucus — then in the minority — implored President Barack Obama to honor all blue slips. The appointment of federal judges is a “shared constitutional responsibility,” the Republicans said, warning Mr. Obama that “if we are not consulted on, and approve of, a nominee from our states,” the senators intended to prevent that nominee from getting a hearing. They expected the blue-slip policy “to be observed, even-handedly and regardless of party affiliation.”
Lucky for them, it was. Senator Patrick Leahy, the veteran Vermont Democrat and chairman of the Judiciary Committee at the time, applied the policy without exception, meaning that a single withheld blue slip would torpedo a judicial nomination.
Republican senators exploited their blue slips with abandon, and with little or no explanation. One senator blocked a nominee because she had once said the Constitution did not protect an individual right to bear arms — an accurate description of the uncertainty about the law at the time. Other senators blocked nominees they had previously approved for other courts, or even recommended to the White House themselves. In all, 18 of Mr. Obama’s judicial nominees were scuttled, including six to the Courts of Appeals. That’s not counting dozens more vacancies that languished for years without a nominee because senators made it clear they would object to anyone.... President Trump now has 144 vacancies to fill on the federal bench, many as a direct result of Republican intransigence during the Obama era.... Unlike their Republican counterparts, however, these Democrats provided a clear explanation for their opposition: The White House, they said, made no meaningful effort to consult with them before making nominations. Mr. Wyden and Mr. Merkley said Mr. Trump had completely bypassed Oregon’s well-established bipartisan selection committee.
These are fair complaints. The Constitution gives the president the power to choose federal judges, but only with the “advice and consent” of the Senate.
Blue Slip Blues: 5 Corrections to the Ongoing Debate: The Senate Judiciary Committee is seeing a renewed debate around ‘blue slips,’ which give Senators input on judicial nominees from their states. (Brennan Center for Justice at NYU School of Law, 09/15/17)
Laila Robbins: the current policy is the same blue slip policy Chairman Leahy maintained during both the Obama and Bush presidencies....Republicans are calling for Democrats to move nominees through the Judiciary Committee significantly faster than they did under Obama.... Consultation with home state senators prior to submitting a nomination has remained a central tenet of blue slip policy.... Democratic Senators are withholding blue slips because they say the White House did not consult with them before submitting nominations. Republican Senators used this same argument to justify withholding blue slips under Obama. ... History reveals the blue slip need not be motivated by partisan gamesmanship, but current Chairman Grassley (R–IA) may deviate from his predecessors and politicize the blue slip.
Republicans are close to scrapping a Senate tradition in order to help Trump pack the courts (The Week, 09/14/17)
Peter Weber: During former President Barack Obama's eight years in office, Grassley and Sen. Patrick Leahy (D-Vt.) strictly honored the blue-slip requests, and Republicans took full advantage, leaving Trump a record number of federal judicial vacancies — 144, including 21 appellate judges and 115 district-level judges. Democrats got rid of the filibuster for appellate and district judges, so the blue slip objections are the only real lever Democrats have left.
Nomination to 9th Circuit Court circumvents judicial selection process (Statesman Journal [OR], 09/14/17)
Mick Harris, Letter to the Editor: Last Thursday, Oregon’s U.S. Senators Jeff Merkley and Ron Wyden vowed to block the nomination of Assistant U.S. Attorney Ryan Bounds to the 9th Circuit Court of Appeals as he was not vetted through Oregon’s traditional, bipartisan judicial selection committee. I applaud them for recognizing the importance of careful judicial selection and objecting to a questionable, externally-imposed process.... One significant concern is Bounds' nomination at the suggestion of Congressman Greg Walden, whose chief of staff is Bounds’ sister.
This underscores the need for a transparent merit process. Some may argue that our senators are engaging in partisan sparring. But that is belied by their recommendation of Republican-appointed U.S. District Court Judge Marco Hernandez as Judge Hernandez has been properly vetted by the Oregon merit selection process.
No Such Thing as Exceptions to the Blue Slip Rule (People For blog, 09/14/17)
Paul Gordon: In their effort to stack our nation’s federal courts with as many far-right ideologues as possible, Republicans have been threatening to do away with the blue slip policy. Conservatives are outraged that Democratic senators dare to exercise a right they have long had, and which Republican senators routinely exercised during the eight years Barack Obama was president. ... When a policy is absolute (as the blue slip policy has been under both Grassley and his Democratic predecessor Patrick Leahy), then making exceptions, even infrequently, is by definition eliminating the policy. ... 1. Republican refusals to agree to hearings by submitting blue slips have been respected 100% of the time—regardless of the reason or lack thereof, regardless of the nominee, regardless of the party of the president or chairman, and regardless of the need to fill the vacancy as soon as possible; and
Republicans are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees.... if he holds a hearing for any nominee without blue slips from both home state senators, all other senators will be on notice. He will have stripped each one of a major prerogative
Mitch McConnell Hints At Weakening Dems’ Ability To Block Trump’s Judges: The GOP leader is making it known he doesn’t like a Senate rule that lets the minority party stop judicial nominees. (Huffington Post, 09/13/17)
Jennifer Bendery: McConnell said Wednesday, for the first time publicly, that he supports keeping the rule in place for U.S. District Court nominees but not for appeals court nominees ... On several occasions, GOP senators refused to turn in blue slips for nominees they had recommended to Obama in the first place, just to prevent the Democratic president from filling a court seat.
McConnell was among those who did that.
When Senate Democrats were in the majority under Obama, they honored the blue slip rule even when Republicans used it to block Obama’s nominees.... McConnell, who is still somewhat of an institutionalist, may just be making the statement to appease conservative groups clamoring for this change. Sen. Chuck Grassley (R-Iowa), who chairs the Judiciary Committee, has made similar comments about blue slips but has yet to stop honoring the rule.... Easing the blue slip rule to cut Democrats out of part of the process would just make it easier for them. But it would also open the door to Democrats doing the same thing to Republicans when they regain the Senate majority, and it would erode bipartisanship in the process.
Sen. Patrick Leahy (D-Vt.), who chaired the Judiciary Committee during Obama’s tenure and upheld the blue slip tradition, told HuffPost in June that Grassley “made it very clear” to him this year that he appreciated that Leahy honored the blue slip rule for Republicans when Obama was president. He said Grassley told him personally that he planned to honor it, too.
“I take him at his word,” Leahy said. “I’ve known him for over 30 years. He’s never broken his word to me.”
10 Things You Need To Know About Blue Slips: Republicans repeatedly used the tradition to block President Obama’s judicial nominees. (Huffington Post, 09/13/17)
Christopher Kang, Former Deputy Counsel to President Obama: Both home-state senators receive a blue slip, and each senator must return a positive blue slip for a judicial nominee to be confirmed — with only three exceptions in 100 years, the most recent in 1989.... overriding negative blue slips would diminish every senator’s influence over his or her home-state’s judicial nominees.... A judge has never been confirmed over the objections of both home-state senators.... Objections by Republican home-state senators have always been respected.... During the Obama administration, Republicans blocked 18 judicial nominees through blue slips.... he Judiciary Committee—under both Chairmen Leahy and Grassley—made zero blue slip exceptions during the Obama administration....When Republicans blocked nominees by withholding their blue slips, they often refused to examine or discuss a nominee’s record and based their objections solely on process — despite a record that suggests months or even years of consultation.... When Republicans returned their blue slips, it could take many months — or even years — to do so, undermining Republican whining now that Democrats are taking a few months to review nominees’ records.... There is no Democratic abuse of the blue slips, as Democrats already have returned blue slips on four circuit court nominees — including two on President Trump’s Supreme Court short-list.... We must uphold the Grassley-Leahy-Hatch blue slip standard.... According to Senator Leahy, “[Chairman Grassley] told me he was going to follow the same procedures as chairman. And I take him at his word…I’ve known him for over 30 years. He’s never broken his word to me.”
Instead, Senate Republicans should heed the words of Senator Hatch — who also is the longest serving Republican senator: “I sincerely hope that the majority will not continue to sacrifice the good of the Senate and the good of the country simply to serve short-term political interests. I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way.”
Editorial counterpoint by Walter Mondale: Franken has navigated Stras nomination properly: Faced with a president who won't collaborate and a conservative movement with a shrewdly developed pipeline to the courts, our Minnesota senator is acting in our best interests by withholding his support. (Minneapolis Star Tribune [MN], 09/13/17)
"I spent many years working on judicial nominations, both during my tenure as a senator and when I served in the White House as vice president. I have seen how fundamental it is to the American system of government that the courts receive bipartisan support.... President Barack Obama and his predecessors followed this tradition. President Donald Trump has ignored it, a disruption of the long-standing process. For reasons that can only be interpreted as purely partisan, he has refused to consult with Democratic senators on judicial appointments.
Many senators have rightfully regarded this approach as an encroachment into the institutional role of Congress.... Franken has acted appropriately in defense of Senate procedure — and he is also right to oppose Stras on the merits. As the chief author of the Fair Housing Act, I am greatly concerned about what Stras’ confirmation could mean for the act and other civil-rights laws.... It is unreasonable to ask that Franken defer to a Senate tradition while a partisan White House ignores that very same tradition. Without the participation of the White House, Franken cannot single-handedly restore comity to the Senate — and in attempting to do so, he would risk being played for a sucker."
GOP May Break Democrats’ Best Weapon Against Wave of Right-Wing Judges (New York Magazine, 09/13/17)
Ed Kilgore: in some cases, Senate Democrats who have been bypassed in the judicial selection process are retaliating via the 100-year-old tradition of the “blue slip” .... Dahlia Lithwick notes the hypocrisy of GOP whining about blue slips now that they are being deployed against conservative nominees: A Democratic Senate during the Obama administration kept the blue-slip process intact, even though it meant that in certain jurisdictions seats remained unfilled for years. To be clear: Not one Obama district or circuit court nominee received a hearing unless both of his or her home-state senators returned blue slips. That meant, for instance, that a seat on the 5th U.S. Circuit Court of Appeals—covering Louisiana, Mississippi, and Texas—has been vacant for more than five years. This is, in fact, one of the reasons Trump has so many empty seats to fill.... Current Judiciary Committee chairman Chuck Grassley has in the past been a staunch defender of the blue slip tradition
Bye-Bye, Blue Slip? Republicans want to trash another century-old Senate norm to help Trump. (Slate.com, 09/12/17)
Dahlia Lithwick: A Democratic Senate during the Obama administration kept the blue-slip process intact, even though it meant that in certain jurisdictions seats remained unfilled for years. To be clear: Not one Obama district or circuit court nominee received a hearing unless both of his or her home-state senators returned blue slips.... This past spring, though, Republican senators who had spent years using the blue-slip process to block Obama nominees threatened to do away with the practice if Democrats used them to block Trump’s.... This is mostly hilarious hypocrisy.... In states such as Oregon or Washington, where well-established bipartisan merit selection panels have taken down the temperature on judicial nominations under both Republican and Democratic administrations, use of the blue slip isn’t merely obstruction of a president. It’s also a protection of long-standing state prerogatives and protocols.