Sen. Feinstein: Protect Senate Power on Judicial Nominees
(Democrat - California)
An editorial memo with additional background on the history of the blue slip is available here [Link] “The blue slip is a Senate tradition that allows both home-state senators to have a say in which judges will serve in their states. It has been supported by Republicans and Democrats alike for 100 years, but it’s now in jeopardy by Senate Republicans who want to pack federal courts with Trump nominees.
“Eliminating the blue slip would end cooperation between the executive and legislative branch on judicial nominees and remove any incentive for the White House to choose mainstream candidates.... no judicial nominee has been confirmed without two blue slips in nearly 30 years, and fewer than five times in the last 100 years. Not a single Obama nominee received even a hearing in the Judiciary Committee, let alone a floor vote, without both blue slips having been returned.... the Obama White House didn’t just consult with Democratic Senators—it also consulted extensively with Republican senators. For example, Senators Hatch and Lee recommended Carolyn McHugh for the Tenth Circuit. Senators Isakson and Chambliss recommend Julie Carnes for the Eleventh Circuit. ... We’ve seen a troubling trend thus far in the Trump administration—candidates meeting only with Republican senators before they’re chosen.
“The result is a White House that refuses to consult with Democratic senators on judicial nominees, then accuses them of obstruction when they want to fully review the nominees’ records. And now, they are threatening to eliminate the blue slip."
Sen. Dianne Feinstein, Ranking Member, Senate Judiciary Committee: Respect Prerogative of Home-State Senators; President Obama nominated Justice Hughes. Sens. McConnell and Paul did not return their blue slips, and Justice Hughes never received a hearing.
(Democrat - California)
Letter to the Editor: The editorial board completely discounts the history of the blue slip, which requires both home-state senators to sign off on judicial nominees from their state ("The Al Franken Standard," Sept. 13).
Here are the facts: In 2016 alone, President Obama's nominations of Judge Abdul Kallon for the 11th Circuit, Justice Myra Selby for the Seventh Circuit, Rebecca Haywood for the Third Circuit and Justice Lisabeth Tabor Hughes for the Sixth Circuit did not move forward because they didn't receive two blue slips.
Trump nominees have been confirmed to two of these vacancies, and nominees for the two other vacancies are pending.
Consider the specifics of the Sixth Circuit vacancy in Kentucky: In March 2016, after the vacancy had been open for almost 1,000 days, President Obama nominated Justice Hughes. Sens. Mitch McConnell and Rand Paul did not return their blue slips, and Justice Hughes never received a hearing.
Their prerogative as home-state senators was honored, and the prerogative of home-state senators should continue to be honored.
The editorial board was silent when these highly qualified nominees were blocked ....
Sen. Feinstein Remarks on the blue slip process
(Democrat - California)
“The purpose of the blue slip is to encourage meaningful consultation between the White House and home state senators on nominees.
Already this year, Judge Amul Thapar was confirmed as a judge on the Sixth Circuit Court of Appeals from Kentucky, and Kevin Newsom is awaiting confirmation to the Eleventh Circuit Court of Appeals from Alabama. Both of these nominations were only possible because Chairman Grassley consistently honored the blue slip rule for circuit court nominees under President Obama.
President Obama had nominated other people to fill those Kentucky and Alabama vacancies, but the home state senators did not return blue slips for nine and ten months, respectively, and those nominations expired.
That is the prerogative of home state senators when it comes to blue slips, and it is a prerogative that Senator Grassley and Senator Leahy both honored as chairmen. Senators deserve all the time they need to review a nominee’s record and make a decision about the blue slip.”
Sen. Feinstein Sets the Record Straight on Blue Slip, Speaks Against Right-Wing Nominees
(Democrat - California)
"I intend to support Mr. Newsom for the Eleventh Circuit, but I need to make a point about blue slips first.
In February 2016, President Obama nominated U.S. District Court Judge Abdul Kallon for this very same vacancy on the Eleventh Circuit.
A few years earlier, Judge Kallon had been unanimously confirmed with the support of Senators Shelby and Sessions when he was nominated to the federal district court bench.
However, Judge Kallon did not receive a hearing in this committee last year because Senators Shelby and Sessions did not support his elevation to the circuit court and thus did not return their blue slips. That’s the prerogative of home state senators for judicial nominees from their states—including circuit court judges and it has existed for 100 years.... President Obama’s nominee Judge Kallon and three other circuit nominees waited nine, 10, up to 11 months for blue slips that never came .... I am not able to support Mr. Bush’s nomination to the Sixth Circuit or Mr. Schiff’s nomination to the Court of Federal Claims.... they expressed strident, provocative and in some cases deeply offensive opinions on a wide range of political and legal issues. If I were a litigant before them, I would not have the confidence that these individuals had the temperament or impartiality to serve as a federal judge.... Bush wrote blog posts where he relied on extreme right-wing sources like World Net Daily .... Schiff referred to Justice Kennedy as a ‘judicial prostitute,’ and accused Justice Kennedy of ‘selling his vote as it were to four other justices in exchange for the high that comes from aggrandizement of power and influence.’ Shocking.
Mr. Schiff also criticized a California school district’s proposed anti-bullying initiative for teaching that ‘homosexual families are the moral equivalent of traditional heterosexual families.’
Lastly, Mr. Schiff has repeatedly made clear his hostility to environmental laws that protect our clean air and clean water."
Sen. Feinstein Speaks on Importance of Senators on Judicial Nominations
(Democrat - California)
Senator Dianne Feinstein (D-Calif.) today spoke at a Senate Judiciary Committee nominations hearing about the importance of preserving the so-called blue slip process that requires both home-state senators to approve a nominee from their state before that nominee can move forward in the Judiciary Committee.
The nomination of Kevin Newsom to the Eleventh Circuit was only possible because senators did not sign off on President Obama’s nominee to fill that vacancy having a hearing in the Judiciary Committee, but Republicans are now signaling that this long-standing precedent is in jeopardy.... "I would just like to say a quick word, if I may, about blue slips and the Eleventh Court vacancy. Last year, President Obama nominated U.S. District Court Judge Abdul Kallon for this very same vacancy on the Eleventh Circuit.
Judge Kallon had been unanimously confirmed with the support of Senators Shelby and Sessions when he was nominated to the federal court bench in 2009. And I’m certain that Judge Kallon would have been an excellent Eleventh Circuit judge.
However, Judge Kallon did not receive a hearing in this committee last year because Senators Shelby and Sessions did not support his elevation to the circuit court, and thus did not return their blue slips. That is the prerogative of home-state senators for judicial nominees from their states—including circuit court judges.
Now, Mr. Newsom is before us today because Senators Shelby and Strange returned blue slips, and I do not hold Mr. Newsom accountable for the senators’ decision not to return blue slips on Judge Kallon’s nomination.
But I’ve seen in the media some comments from friends across the aisle suggesting that blue slips have historically been less important for circuit court nominees than district court nominees. And respectfully, that’s just not the case. The fact that Mr. Newsom is sitting here before us today proves that fact."
Sen. Feinstein: Setting the record straight on judicial nominees and blue slip
(Democrat - California)
"Some Senate Republicans have recently suggested that the so-called “blue slip” for judicial nominees is less important for circuit court nominations than district court nominations. (The blue slip is a process where both senators must sign off on judicial nominations in their own state.)
In fact, no Obama administration district or circuit court nominee received a Judiciary Committee hearing unless both home-state senators approved of the nominee by returning their blue slips.
The Senate is set to vote on the nomination of Judge Amul Thapar to fill a nearly 1,400-day vacancy on the Sixth Circuit Court of Appeals. Judge Thapar’s nomination by President Trump was only possible because the blue slip was always honored for circuit court nominees during the Obama administration.
President Obama last year nominated Kentucky Supreme Court Justice Lisabeth Tabor Hughes to this Sixth Circuit vacancy. She received a unanimous well-qualified rating from the American Bar Association. However, Judge Tabor Hughes never received a hearing in the Judiciary Committee because both Kentucky senators did not return their blue slips.... Senate Democrats did not abandon the blue slip during the Obama administration even though the Senate Judiciary Committee was controlled by Democrats for six of the eight years.
For example, Judiciary Committee Democrats did not advance Obama nominees in any of the following situations:
Only one home-state senator returned the blue slip.
Senators initially returned blue slips but later rescinded them.
Judicial vacancies were left open for years.
Senators recommended a nominee to the White House for a district court vacancy, but refused to return a blue slip for that same nominee when nominated to a circuit court vacancy.
The blue slip serves an important purpose by incentivizing meaningful consultation and cooperation between the White House and Senate on judicial nominees.
Eliminating the blue slip is essentially a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups. During the administrations of President George W. Bush and Bill Clinton, no circuit court or district court nominees were confirmed without blue slips from both home-state senators.
Senator Orrin Hatch (R-Utah), former chairman of the Judiciary Committee, wrote in a 2014 op-ed, “I continued this blue slip tradition. Not a single district court nominee received a committee hearing, and not one appeals court nominee was confirmed without the support of their home-state senators…”"
Statement of Senator Patrick Leahy On Judicial Nominations June 21 2016
(Democrat - Vermont)
"There is an urgent need for this Committee to hold more hearings for judicial nominees this year, for Chief Judge Garland and so many other long-pending nominees who would fill vacancies throughout the country. Since Republicans took over the majority last year, judicial vacancies have nearly doubled from 43 to 83. Of these, 30 are in courts so strained that the vacancies have been deemed “emergencies.” Despite these empty judgeships all over the country, Republicans have allowed just 20 judicial nominees to be confirmed since last year. Contrast that to the last two years of the Bush administration, when Senate Democrats were in the majority when we confirmed 68 judges, and judicial vacancies at the same time were half of what they are today.
This Committee should be holding additional hearings this year to consider the 26 other judicial nominees pending, including additional circuit court nominees. In the last two years of the Bush administration, I had already held hearings on eight circuit court nominees by this time, and all eight of those nominees were subsequently confirmed – by a Democratically-controlled Senate. Under Republican leadership, this Committee will have considered only four circuit court nominees after today. We should be considering the nominee for an emergency vacancy on Ninth Circuit, which is by far the busiest Federal appeals court. Judge Lucy Koh, who currently serves on the Federal district court in California, was nominated to that vacancy four months ago. She has the endorsement of several Republicans and conservative leaders .... We should be immediately taking up the 26 judicial nominees pending on the floor."
Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On Judicial Nominations
(Democrat - Vermont)
"Donald Schott of Wisconsin is nominated
to fill a vacancy on the Seventh Circuit Court of Appeals. Mr. Schott has the bipartisan support of his home state senators from Wisconsin, and he should receive a prompt vote in Committee
and soon be considered by the full Senate.
In addition to Mr. Schott, there are six other circuit nominees who should receive a hearing soon.... there remains 30 other judicial nominees waiting for a hearing.... we have only had 3 hearings for 13 nominees this year. In the last year of
the Bush administration, I had already held 7 hearings for 20 nominees at this same point. Further, I will note that in the last two years, I held hearings on eight circuit court nominees by this time, and all eight of those nominees were subsequently confirmed – by a Democratically controlled Senate. ... in
2008, when I was Chairman of the Judiciary Committee with a Republican President, I held hearings in the Committee for judicial nominees as late as September 23, 2008. And later that same month on September 26, 2008, the Democratically-controlled Senate confirmed 10 of President Bush’s judicial nominees in one day.... Because of Republican obstruction, judicial vacancies have nearly doubled from 43 to 80 since
Republicans took over the majority. At this same point in the Bush presidency, Democrats had reduced vacancies to just 46. ... Regardless, Senate Republicans must understand that their job is not to calculate incomplete comparisons of former Presidents and then put their pencils down. We work for the American people. Senators do not get to stop doing their work during election years."
Sen. Leahy: Senate Republicans Allow Confirmation Vote On Single Judicial Nominee While Holding Up Dozens More; From Trial Courts To Supreme Court, Americans Are Finding It Harder To Seek Justice In Our Courts Because Of GOP Obstruction
(Democrat - Vermont)
“Because of Republican obstruction, our independent judiciary is struggling to perform its role under the Constitution,” Leahy said, noting that a judge on the Eastern District of Texas recently warned that plaintiffs would experience “draconian kinds of delays” if more judges are not confirmed soon.
Senate Republicans have allowed just 18 judicial nominees to be confirmed since taking over the majority last year. In sharp contrast, the Democratic-controlled Senate confirmed 68 judicial nominees in the last two years of President Bush’s tenure.
District court nominees from New Jersey, Nebraska, Tennessee, California, Rhode Island, Pennsylvania, and Hawaii are all pending on the Senate floor. Senate Democrats have repeatedly sought to confirm these nominees, all of whom have the support of their home state Senators and were overwhelmingly reported by the Judiciary Committee. However, Senate Republicans have blocked every request to clear the nominations backlog and confirm these nominees.... “I was heartened to hear the Majority Leader last week make the point that an election year is ‘not an excuse not to do our work.’ I whole-heartedly agree,” Leahy said. “The Supreme Court should not be held hostage to election year politics. I urge the Majority Leader to heed his own advice by scheduling confirmation votes on the lower court nominees we have pending, and I urge the chairman of the Judiciary Committee to follow suit by scheduling a confirmation hearing for Chief Judge Garland.”
Sen. Reid: Republicans Setting a Record for Fewest Nominees Confirmed In Decades
(Democrat - Nevada)
According to a new report by the nonpartisan Congressional Research Service, this Republican Senate led by Mitch McConnell has:
confirmed just 17 lower court nominees, the fewest in decades and less than a third of the recent historic average
confirmed just 198 civilian nominations, the fewest in decades and less than half of the historic average
more than doubled the number of judicial emergencies from 12 when Republicans took control to 28 today
Statement from Senator Reid: “The Republican Senate is making history for all the wrong reasons. Since taking the Senate majority, Republicans have doubled down on their commitment to gridlock, confirming the fewest nominations in decades. Republicans’ refusal to do their job has real world consequences too. They’ve shut down many Americans’ access to the justice system by more than doubling the number of judicial emergencies across the country. This is yet another example of Senate Republicans refusing to do their jobs.”
Sen. Leahy: Republicans’ Refusal To Do Their Jobs Means Our Courts Cannot Do Theirs—And Americans Suffer
(Democrat - Vermont)
"When Democrats held the Senate majority, we worked hard to fulfill our constitutional role to consider and confirm judicial nominees to fill vacancies in courts throughout the country. Despite constant obstruction by Senate Republicans who blocked President Obama’s nominees at every turn, we reduced the number of judicial vacancies to 43 by the end of 2014. ... Vacancies have increased 75 percent since Republicans took over the Senate majority.... There are 20 judicial nominees pending on the Senate floor who were all unanimously voice voted out of the Judiciary Committee. Several of them are from states with Republican home state Senators who support their nomination.... since taking over the majority last year, Republicans have confirmed just 17 judges. At this point in the last two years of the Bush administration with a Democratic Senate, we had confirmed 68 of President Bush’s judicial nominees.... here are 35 more judicial nominees awaiting a hearing, including 7 circuit court nominees. Three of these circuit court nominees have blue slips returned by both of their home state Senators and are ready for a hearing."
Sen. Leahy: Republican Obstruction Threatens Confirmation Of Consensus Nominees: Senate Has Not Confirmed A Single Judicial Nominee Since February
(Democrat - Vermont)
The Senate Judiciary Committee has not held a confirmation hearing for lower court nominees since January, and the full Senate has not voted to confirm a single judicial nominee since February. On Thursday, Ranking Member Patrick Leahy (D-Vt.) called on Republicans to return to regular order and consider judicial nominees.
“More than a year into this new Congress, the Republican leadership has allowed only 16 judges to be confirmed,” Leahy said. “I hope that Senate Republicans will stop delaying consideration of the 17 judicial nominees pending on the Executive Calendar. These are all nominees who were reported out of this Committee by voice vote.”
Last month, Republicans denied confirmation votes to long-pending judicial nominees, including a Tennessee nominee with Republican support. ...In a letter sent Thursday, 40 national organizations led by the Leadership Conference on Civil and Human Rights blasted Senate Republicans for blocking nominees from being confirmed.
“It appears that the Committee is determined to shut down the confirmation process entirely – putting political considerations ahead of the national interest in a well-functioning judicial branch, and ahead of the constitutional responsibility of the Senate to do its job of providing advice and consent on presidential appointments,” the letter states.
Senate Republicans have allowed just 16 judicial nominees to be confirmed since taking over the majority last year. At this same point in the eighth year of the Bush administration, the Senate Democratic majority had confirmed 40 judicial nominees. In 2008, while Leahy served as chairman of the Judiciary Committee, Senate Democrats worked to confirm judicial nominees as late as September of the presidential election year. In total, the Democratic majority confirmed 28 of President Bush’s judicial nominees in 2008.
Sen. Reid Floor Statement: JUDICIAL NOMINATIONS
(Democrat - Nevada)
"The Republican-controlled Senate Judiciary Committee and its Chairman, Senator Grassley, have fallen far behind any comparable Senate in confirming judicial nominations.... Under Chairman Grassley's leadership, the Judiciary Committee is grinding the nomination process to a halt. The number of judicial nominations confirmed in this Congress is the worst. To date, this Republican-controlled Senate has confirmed only 16 judicial nominations.
That is one judge a month.
Contrast that with the last years of George W. Bush's Presidency. We had a Democratic Senate and we had a Republican President. Then-Democratic Chair Leahy and his Senate colleagues confirmed 40 judges--40 confirmations compared to 16 under Chairman Grassley. ... We have to go back more than six decades to find a Senate Judiciary Committee that was less productive .... In 1988--President Reagan's last year--the Senate Judiciary Committee reported circuit and district court nominations as late as October....This is what the Republican leader said in July of 2008: ``Even with lameduck Presidents, there is a historical standard of fairness as to confirming judicial nominees, especially circuit court nominees.'' ... the senior Senator from Iowa is taking his marching orders from the Republican leader and has instituted a blockade of judicial nominations at every level.... Waverly Crenshaw, who was recommended by Senators Alexander and Corker to be a district judge in the Middle District of Tennessee.... was reported out of the Judiciary Committee unanimously in July of 2015--almost 10 months ago.
The vacancy in the Middle District of Tennessee is a judicial emergency ... Last month, the Senators from Maryland asked to bring the Crenshaw nomination to a vote, but the assistant Republican leader objected.... So I say to the chairman of the Judiciary Committee: Stop blocking these nominees. Do what other Judiciary chairs have done for 200 years and move the process forward. These nominations are important. Or, put simply, do your job. This--a historic slowdown of judicial confirmations--isn't your job, and it is not what the people of Iowa sent you here to do, as indicated by the Des Moines Register: ``Grassley leads slowdown of judicial confirmations.''"
Sen. Cardin Floor statement [on Judicial Nominees]
(Democrat - Maryland)
"I am certainly disappointed by the Senator from Texas objecting to the request of the senior Senator from Maryland, Ms. Mikulski.
The request of Senator Mikulski is for us to consider two article III judges who are next in line for consideration before the U.S. Senate. They have cleared the committee. They have both been approved by the committee by voice vote, a unanimous vote within the Judiciary Committee.... We have completed the confirmation process on 16 article III judges since the beginning of this term of Congress. The comparable number in the last 2 years of a Presidential term where the President was of the Republican Party and the Senate was controlled by the Democrats--just the opposite of what we have today--was the year 2007 and 2008 under President George W. Bush. The Judiciary Committee was chaired by Chairman Leahy. That year, by March 9, we had cleared and confirmed 40 judicial appointments--40 compared to 16 in this Congress. By the end of the year, we had approved 68 of President Bush's nominees.
Going back to the other time with a Republican President and with a Democratically controlled Senate--President Reagan--in 1987 and 1988, under Chairman Biden, by March 9 of the last year, the Senate had confirmed 47 of his nominations, compared to 16 this year, and by the end of the year, we had confirmed 85 nominees, including a Supreme Court Justice, Justice Kennedy.
We have pending right now on the floor of the Senate that have cleared committees--every single one by voice vote unanimously--we have 12 article III judges who are ready for action and 5 other judicial appointments, for a total of 17. But that is not the whole story. We have 25 nominees who are still pending before the Judiciary Committee, including Stephanie Gallagher of Maryland, to fill a vacancy."
Sens. Sessions & Shelby joint statement on 11th Circuit nomination of Judge Kallon
(Republican - Alabama)
"Throughout the process of meeting with the White House on filling judicial vacancies, we negotiated in good faith to find nominees that will serve our state well," they said. "While we thought progress had been made, apparently the White House was never interested in good faith negotiations, and it is too late now."
Sen. Leahy: Senate Should Hold Up-Or-Down Votes On Noncontroversial Judicial Nominees
(Democrat - Vermont)
"I noted when the Senate considered the nominations of Judge Christina Reiss of Vermont and Mr. Abdul Kallon of Alabama relatively promptly that they should serve as the model for Senate action. Sadly, they are the exception rather than the model. They show what the Senate could do, but does not. Time and again, noncontroversial nominees are delayed."
SEN. SESSIONS PRESENTATION OF ABDUL KALLON, NOMINEE TO BE U.S. DISTRICT JUDGE, SENATE JUDICIARY COMMITTEE HEARING
(Republican - Alabama)
"I am pleased to introduce Mr. Abdul Kallon, who's been nominated to the U.S.
District Court for the Northern District of Alabama. He's had a distinguished law career.... Mr. Kallon clerked
for Judge U.W. Clemon, Chief Judge of the Northern District of
Alabama, who I see here with him in support, I know, of Mr.
Kallon. So, that's the same court for which he's being
considered today. I'm sure Judge Clemon is pleased to have
someone of his caliber replacing him on the bench. Following his clerkship, Mr. Kallon joined the law firm of Bradley, Arent, Bolt, Cummings in Birmingham, which I suppose
they would say was a premier law firm in the State, certainly it was the biggest law firm in the State for many years, and I
guess that it still is. ... He received some impressive accolades for his work. In both 2007 and 2008, he was listed in the Best Lawyers in America for Labor and Employment Law, and in each of the
last 3 years was listed in Chamber's U.S.A. America's Leading Lawyers for Labor and Employment Law. In addition to his impressive legal credentials, he's been
active and dedicated to the community. For the past 9 years he's worked closely with Big Brothers and Big Sisters. He's
also been a member of the board of directors of Children's Village since 2004, and the board of directors of Girls, Inc.
of Central Alabama since 2007. Mr. Chairman, I talked to a number of lawyers in the Birmingham area who know Mr. Kallon and they all speak universally very highly of his integrity and judgment and legal ability."