GOP Slips Past Another Senate Custom, and Democrats Turn Blue
Home-state senators’ sway over judicial nominees is quickly disappearing
The latest threat to what’s made the Senate the Senate for generations can be illustrated with a sheet of paper the color of cornflowers.
First to go was the reverence for compromise. It went out the window a decade or so ago, the start of the current era when the most conservative Democrat is reliably positioned to the left of the most liberal Republican. Then the veneration of minority-party rights got obliterated, five years ago, with a blast of “nuclear” limits on filibuster powers.
And now, the “blue slip” — symbol of a single senator’s abilities to wield dispositive clout in an otherwise democratic legislature — is threatened with an unprecedented shredding.
At issue is not only another tip toward the White House in the never-ending balance-of-power tussles with Congress, but also the ideological makeup of the federal appeals courts for the next couple of decades.
Responsibility for this impending change lies partly with President Donald Trump — no surprise given his combative disdain for virtually anything that smacks of traditional ways of doing business at the Capitol and that might get in his way.
Watch: What’s a Senate Blue Slip and Why Is It Losing Power?
But he cannot get what he wants without Senate Majority Leader Mitch McConnell and Judiciary Chairman Charles E. Grassley. And their willingness to be his lieutenants remains a bit surprising, even in the years since they collaborated to award Trump the biggest possible trophy in the judicial wars: a Supreme Court seat, preserved in amber for a whole year so its occupant could be named by a Republican instead of a Democrat.
Kentucky’s McConnell and Iowa’s Grassley will be the two longest-serving GOP senators come January, the only two from their conference who arrived in the first half of the 1980s. Both have been unabashed in asserting their right to have a special say over who from their states gets chosen for judgeships, even in the 16 years when a Democratic president was doing the nominating.
And both continue to cultivate reputations as institutionalists — defenders of the practices and prerogatives long revered (including when they were rising to Capitol Hill prominence) as essential for preserving the Senate’s historic and unique role in our governmental system, not oddball and annoying impediments to evanescent political gains.
None of that seems to matter as much, however, as making sure a president of their party can reshape the dozen regional federal appeals courts as fast as possible — not only to apply more of a conservative sheen to the bench, but also to engineer for Trump and the GOP-run Senate some election year accomplishments at a time when the path of legislative policymaking is essentially closed off.
And to get that done, McConnell and Grassley have decided, the power embodied by the blue slip for the past century will have to fade.
Since 1917, the Judiciary Committee has been sending out questionnaires to both home-state senators of every person nominated for a trial court spot or an appeals court judgeship. They are asked to sign and return the form (printed on special blue-tinted stationary) after checking the box next to “approve” or “oppose.”
At a minimum, asking has been a courtesy afforded those senators as part of the constitutional advice and consent system — to allow them a special say-so about people in line for lifetime appointments meting out justice and applying constitutional principles in their states.
What the committee chairmen have done with that input has varied somewhat. Some modern-day chairmen of each party permitted the occasional nominee to advance after one home-state senator objected, especially if there was evidence the White House at least consulted with that lawmaker before doing what he did not like.
Only once, according to a Congressional Research Service study of the blue slip, has a nominee started down the track when both senators objected — and, after a hearing in 1985, President Ronald Reagan’s nomination of Honolulu attorney Albert I. Moon Jr. was put on perpetual hold by Hawaii’s two Democratic senators. (As is still the case in many states, the senators had created a bipartisan judicial selection panel that sent a roster of names to the White House for every parochial vacancy. Moon was not on it.)
More often than not, the Judiciary panel has insisted on receiving two positive blue slips before starting the confirmation process. That was the ironclad policy applied by the last Democratic chairman, Vermont’s Patrick J. Leahy, who presided during the bulk of Barack Obama’s tenure.
Leahy’s adherence to custom may have been heartening to Senate traditionalists. But it gave Republicans significant power to block Obama’s choices and keep seats open indefinitely — and that’s what they did, one reason why Trump had so many judgeships to fill as soon as he took office. (In essence, Neil Gorsuch’s passage to the Supreme Court instead of Merrick Garland, Obama’s pick to succeed Antonin Scalia, had plenty of parallels further down the judicial food chain.)
And while sticking with mainstream tradition on the blue slip, the Democrats took on the most venerable of the old-world Senate practices in an effort to help Obama put his stamp on the courts — neutralizing the filibuster by reducing, from 60 to 51, the number of votes needed for a confirmation.
Now, of course, it’s Trump who’s capitalizing on this faster-track process. And he’s ready to turbocharge it with a faded blue slip.
Trump has already filled 21 appeals court seats, one of every eight in the country. Two were confirmed after Judiciary ignored opposition from home-state senators. Milwaukee lawyer Michael Brennan was seated on the 7th U.S. Circuit Court of Appeals this month without a blue slip from Wisconsin Democrat Tammy Baldwin. And objections from Minnesota Democrat Al Franken, who resigned in January, did not stop state Supreme Court Justice David Stras from moving to the 8th Circuit.
Trump has been able to fill all three seats customarily reserved for Kentuckians on the 6th Circuit, while both Iowa slots on the 8th Circuit are occupied by judges in their middle 50s and not expected to leave soon.
Without parochial concerns to worry about, McConnell and Grassley are preparing to further upend Senate convention by allowing the confirmation of appeals court judges opposed by both home state senators. CRS says it can find no evidence this has ever happened.
(The GOP leaders say they still support blue-slip power over trial court judges, whose jurisdictions are confined to a single state.)
The precedent-breaker looks to be Ryan Bounds, a 44-year-old federal prosecutor in Oregon. At its first meeting in June, the Judiciary panel is on track to endorse him for a seat on the 9th Circuit, even though the state’s senators, Democrats Ron Wyden and Jeff Merkley, have refused to turn in blue slips. After Bounds was chosen from a roster of four recommended by an independent screening committee, his inflammatory writings as a college student — about sexual assault and gay rights, among other topics — were labeled disqualifying by the senators.
“It’s a very significant mistake for this committee to have gotten rid of this tradition,” Democrat Sheldon Whitehouse of Rhode Island told Judiciary last week. “We will rue the day.”
Once the custom is shattered, Trump could feel emboldened to try to fill three California vacancies on the 9th Circuit with people opposed by the state’s senators, Democrats Dianne Feinstein and Kamala Harris. And their blue-slip behavior could be powerless to stop him, even though both sit on the Judiciary Committee.
Even adding four Trump choices to that court, which hears appeals from nine Western states that are home to one-fifth of the nation’s population, would still not come close to altering its solidly liberal majority.
Not so with the 2nd and the 3rd circuits, which together handle appeals from much of the Northeast. Narrow majorities on each are Democratic appointees, but Trump could create GOP majorities by putting three people on each court.
Potentially standing in his way, at least historically, is that five of the six states under the jurisdiction of those circuits are represented by a pair of Democratic senators, and it seems almost certain to stay that way indefinitely. The question now is whether the presumably smart and young conservatives Trump puts up will be chosen with the views of those senators in mind — or with clear disregard for them.
Trump’s first pick for vacancies on the 2nd Circuit is a veteran federal district court judge in New York, Richard Sullivan, who has not prompted reservations from the state’s two Democratic senators, Charles E. Schumer and Kirsten Gillibrand. But the Democratic senators from New Jersey, Cory Booker and Robert Menendez, have kept their powder dry since Trump last month tapped Paul Matey, a top counsel to Chris Christie when he was governor, for the 3rd Circuit.
“While I have my concerns,” Booker said, “I’ll reserve a final judgment until I have had the opportunity to fully review his record.”
The question is, will such senatorial judgments end up mattering at all?