Editorials and Opinion
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.
Commentary: Nominate Ronald Russell for the federal court in Utah (Salt Lake Tribune [UT], 09/15/17)
Prof. Carl Tobias: In December 2015, President Barack Obama nominated Ronald Russell ... to a judicial vacancy on the District of Utah.
Russell was a highly qualified, moderate nominee whom Utah Republican Sens. Orrin Hatch and Mike Lee powerfully supported. The Senate Judiciary Committee reported Russell in May 2016 without dissent.
Nonetheless, Russell languished on the floor .... Russell’s renomination and confirmation can be achieved easily. Hatch and Lee should urge President Trump to promptly nominate Russell again, just as he recently renominated five other well qualified, mainstream Obama nominees, who had previously earned committee approval like Russell.
Obama & Trump both like him – SC lawyer Coggins nearing $205,100 federal judge’s job (State [SC] , 09/15/17)
John Monk: Donald Coggins has cleared a major hurdle to be a federal judge in South Carolina and his nomination now awaits a vote by the full U.S. Senate.
“As soon as a vote is scheduled on the Senate floor, he’ll be confirmed,” said Carl Tobias, a University of Richmond School of Law professor who follows federal judicial selection issues.
Coggins, a trial lawyer who is approximately 56, was nominated in 2016 by President Obama and was approved that year by the Senate Judiciary Committee. But that nomination was never voted on because the Senate Republican majority had mounted a broad effort to block Obama’s nominees to the bench, Tobias said. After President Trump nominated Coggins on Aug. 3, Coggins’ nomination was quickly approved this week by the Judiciary Committee. Coggins didn’t need to undergo another hearing because the Judiciary Committee already had held a hearing and approved him during Obama’s presidency.
Mondale defends Franken role in blocking judge (Minnesota Public Radio, 09/14/17)
Bob Collins: Former Vice President Walter Mondale knows the law. He also knows the Senate. And he’s firmly on the side of Sen. Al Franken in opposition to Minnesota Supreme Court Justice David Stras’ appointment to the Eighth Circuit U.S. Court of Appeals.
National fair courts group: Trump nominee for NC federal vacancy should be rejected (Progressive Pulse [NC], 09/14/17)
Commentary by Rob Schofield: The good government watchdogs at the nonpartisan Alliance for Justice are out with a damning assessment of President Trump’s nominee for the long vacant federal District Court seat in North Carolina’s Eastern District. The 13 page report offers a detailed and disturbing look at the career of Thomas Farr and his far right views.
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.
"The dogma lives loudly within you" — Dianne Feinstein's amazing challenge to 7th Circuit nominee Amy Coney Barrett. (Althouse, 09/14/17)
Ann Althouse: I'm writing about this topic for the first time because there's a NYT op-ed by lawprofs Geoffrey R. Stone and Eric J. Segall that I anticipate will get closer to what I'd like to say than what I've seen so far. At the Judiciary Committee hearing on the nomination of Amy Coney Barrett, Dianne Feinstein said something related to religion ... We're being asked to rely on the decision that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee.
To create a special immune, untestable zone is absurd.
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.
Senator Franken’s Courage (Huffington Post, 09/14/17)
Nan Aron: Sen. Al Franken of Minnesota did a simple, reasonable thing, that in the context of the current cravenly-led Senate stands as a monumental act of courage: he announced he would not return his “blue slip” on the nomination of David Stras to the Eighth Circuit Court of Appeals.... And there is plenty of justification to oppose Stras.
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
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.”
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
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.”
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."
Women Need Not Apply: For U.S. Attorney Or The Federal Bench (WGBH [MA], 09/13/17)
Commentary by David S. Bernstein: The bypassing of traditional process—and particularly Democrats and non-partisans—might also help explain why Trump is establishing a shocking gender gap among federal prosecutors in the country’s 93 US Attorney offices.
Trump has now forwarded nominations for 42 of the 93—and 41 of those 42 nominees are men.... It’s manifesting itself in Trump’s judicial nominations as well, although they haven’t been nearly as lopsided as the prosecutors. Ten of his first 50 nominees to District Courts and Circuit Courts of Appeals have been women, or 20%. That is still a sharp reversal. Women comprised more than 35% of judges on those courts when Trump took office—a rate that has risen steadily, through Democratic and Republican Presidencies, for the past 40 years. Obama’s confirmed judicial nominees were 42% female.
As with the U.S. Attorneys, Trump has acted first to nominate judges with Republican Senators—in fact, he has not yet nominated a single District Court judge in a state with even one Democratic Senator.
That includes Massachusetts, with two District Court openings. A nomination committee has begun accepting applications—but there is no guarantee its work won’t be ignored just like the nominating committee for the state’s U.S. Attorney.
Faith, Law and Dianne Feinstein (New York Times, 09/13/17)
Op-Ed by Profs. Geoffrey R. Stone & Eric J. Segall on "Amy Coney Barrett, a law professor at Notre Dame and a nominee to the Seventh Circuit Court of Appeals. During the hearing, Senator Dianne Feinstein, Democrat of California, pressed Ms. Barrett, who is a devout Catholic, on the relationship between faith and judicial duty, which the professor had once addressed in a law review article. ... Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.
Franken-Stras faceoff leads to silly ad by conservative group (Minnesota Public Radio, 09/13/17)
Bob Collins: The bench is serious business.
A conservative judicial group, however, went juvenile, instead, releasing an ad today claiming that Franken is jealous of Stras. This nonsense is the classic dumbing down of a complex political story.... It also doesn’t acknowledge a reality of judicial elections in Minnesota. Voters rarely know anything about the judicial candidate they’re voting for
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.
Probing Nominees’ Positions on Constitutional Rights, Church-State Separation Is Not Religious Persecution (Huffington Post, 09/12/17)
Peter Montgomery: Religious Right organizations and conservative media outlets have been slamming Democratic senators over their questioning of Notre Dame Law Professor Amy Coney Barrett, who has been nominated by President Donald Trump to serve as a federal appeals court judge. ... This is a smear that conservatives have been using against Democratic senators—many of them Catholic themselves—for more than a decade.
Sen. Grassley has been 'inconsistent' with Judiciary Committee rules, traditions (Des Moines Register [IA], 09/12/17)
Drew Kelley, Letter to the Editor: Sen. Grassley set an unprecedented record of obstruction when he denied Judge Merrick Garland even the courtesy of a hearing. ... Sen. Grassley cited strict adherence to the non-existent “Biden rule” as the reason for his obstruction. However, Grassley’s respect for the rules quickly vanished when he voted to change the confirmation process to a simple majority for President Donald Trump's nominee Judge Neil Gorsuch.
Sen. Grassley has another opportunity to show America whether he values the Committee’s rules and traditions over partisan politics and opportunism. Sen. Al Franken has stated he will exercise his right to withhold the blue slip for the nomination of Justice David Stras. The blue slip tradition halts proceedings on a nominee unless approved by both home-state senators. This tradition has been honored completely under Senate Judiciary Committee Chairmen Leahy and Grassley since 2009, including four instances on Obama circuit nominees last year alone.
Will Sen. Grassley return a level of decorum to the Senate Judiciary Committee?
Readers Write: Sen. Al Franken and the Stras nomination (Minneapolis Star Tribune [MN], 09/08/17)
Barbara Isaacman: The editorial turned the truth on its head. Franken is providing a great service for the people of this country by opposing this nomination in the manner (that is, the refusal to return the “blue slip”) used by the Senate for decades. Rather than allowing home-state senators to recommend judicial nominees for his consideration, President Donald Trump has outsourced the judicial selection process to the ultraconservative Federalist Society, whose out-of-the-mainstream legal philosophy does not reflect the values of the American people. Unless senators begin to use the tools at their disposal to stop this runaway train, the rights that Americans hold dear will be lost for generations to come and the protections accorded citizens by the Bill of Rights will be severely weakened.
Instead of criticizing Franken, the Editorial Board should be applauding his act of courage.
JUDICIAL NOMINATION: Editorial Board is wrong: Franken is showing courage (Minneapolis Star Tribune [MN], 09/08/17)
Larry LaVercombe, Letter to the Editor: I have to disagree with the Star Tribune Editorial Board’s opinion on U.S. Sen. Al Franken blocking the nomination of Minnesota Supreme Court Justice David Stras to the Eighth U.S. Circuit Court of Appeals.... Franken is doing his job to set a limit.
Filling the Texas Federal Court Vacancies (Texas Law Review, 09/08/17)
Professor Carl Tobias surveys the history of modern appointments complications and the Texas judicial vacancy crisis. Professor Tobias argues that expanding caseloads, increasing appellate and district court judgeships, and rampant partisanship have clearly undermined selection efforts across the country and Texas, which is ground zero for the “confirmation wars.”
It’s a Fact: Barrett Misled the Senate Judiciary Committee (Justice Watch, 09/08/17)
"On Wednesday the Senate Judiciary Committee held Amy Coney Barrett’s confirmation hearing for a seat on the Court of Appeals for the Seventh Circuit.... A sampling of Barrett’s most egregious misstatements follows."
The Religious Right’s Bankrupt Attacks on Democratic Senators’ Questioning of Amy Coney Barrett (People For blog, 09/08/17)
Paul Gordon: Right wing organizations are at it again, with phony accusations that Democrats are anti-Catholic. This time, their targets are the Democrats on the Senate Judiciary Committee. The senators’ crime: asking a judicial nominee questions about an article she wrote that is directly related to how she would rule as a judge.
Amy Coney Barrett, a law professor at Notre Dame, has been nominated to serve on the Seventh Circuit Court of Appeals. ... In an article she co-authored entitled “Catholic Judges in Capital Cases,” Barrett wrote extensively about the responsibility of a Catholic judge who opposes the death penalty when she is assigned a capital case. ... With written statements such as these, a senator would be negligent not to probe into whether and how Barrett’s personal beliefs would affect her decisionmaking as a judge. This is anything but anti-Catholic or anti-Christian.
Her personal views, per her own admission, are intimately connected to how she would act as a judge.
Bennet Helps Advance Far Right Trump Nominee for 10th Circuit (People For blog, 09/07/17)
Paul Gordon: With Republican senators rubber-stamping all of Donald Trump’s judicial nominees—they’d confirm a ham sandwich if Trump nominated one—blue slips are the only tool Democrats have to protect our nation’s circuit courts from being taken over by ideological extremists hand-picked by the Federalist Society and Heritage Foundation. On Tuesday, Sen. Al Franken took a principled stand against intense political pressure and announced that he would not return his blue slip for David Stras, Trump’s nominee for the Eighth Circuit.
Unfortunately, according to reports, Colorado Sen. Michael Bennet has buckled to pressure and returned his blue slip for a similarly unqualified nominee, state Supreme Court Justice Allison Eid for the Tenth Circuit.
Eid is Trump’s choice to replace Neil Gorsuch, who has been elevated to the Supreme Court, but this seat does not need to be filled. In fact, the Judicial Conference of the United States took the highly unusual step of announcing that the Tenth Circuit’s caseload is so light that Gorsuch ought not be replaced. As the official entity charged by Congress to measure judicial caseloads and make recommendations for adding or subtracting judgeships, the nonpartisan Judicial Conference knows better than anyone when filling a judgeship would be an expensive waste of limited resources.
But even were that not the case, it’s clear that Allison Eid is not qualified to serve on the Tenth Circuit. Last year, she was on then-candidate Trump’s list of 21 potential Supreme Court nominees, a list created by the Federalist Society and the Heritage Foundation.
Franken Won't Turn in His Blue Slip (electoral-vote.com, 09/06/17)
"Grassley has been in Congress for 42 years and knows that some day the shoe is going to be on the other foot, with a Democratic president nominating an extreme liberal and a conservative senator from his state objecting. For this reason, he might decide to keep the blue-slip tradition, just as Mitch McConnell has no intention of abolishing the filibuster because he understands this shoe/foot business. Nevertheless, there will be intense pressure on Grassley to ignore Franken and kill the tradition to get Stras confirmed. If it is killed, there will be many new "Strases" to follow, in part because Barack Obama had many of his of his nominees to the federal bench killed by blue slips, which has led to an exceptionally large number of federal judicial vacancies."
The course of the confirmation process isn’t supposed to run smooth (R Street, 09/06/17)
James Wallner: Senatorial deference, far from facilitating the proper working of the confirmation process, risks undermining the judiciary’s independence as a coequal branch of government by making the Senate less likely to check the president in determining the composition of the federal bench.