The first shots were just fired in the Senate's brewing judiciary war

  • Senate Judiciary Committee Chairman Chuck Grassley just dramatically curtailed the “blue slip” process.
  • It’s a move that sent shockwaves through the Judiciary Committee and was praised by Republicans and scorned by Democrats.
  • Immediately, Grassley announced that two of President Donald Trump’s nominees who were blocked by senators who refused to return blue slips would now have confirmation hearings.

Senate Judiciary Committee chairman Chuck Grassley just escalated the brewing judicial war to a new high, ditching what is known as the “blue slip” process for some of President Donald Trump’s judicial nominees.

In a statement on the Senate floor Thursday afternoon, Grassley stripped the blue slip of much of its power. Now, he said, if a single home-state senator refuses to return a blue slip with a positive endorsement for a circuit court nominee, it will not prevent them from getting confirmed to the bench.

In making that announcement, Grassley then announced that two circuit court nominees who were blocked by a single senator in their states will now receive confirmation hearings.

The blue slip is a century-old Senate tradition in which senators can give or withhold their blessing for a judicial nominee from their state. The process provides the party that does not control the White House with leverage over a good number of the president’s nominations.

The process is intended to provide a more bipartisan consensus on judges who will serve in or represent a senator’s home state when the president is of the opposition party, encouraging communication between the White House and home-state senators before a nomination. But the opposition party has sometimes used the blue slip process to stonewall nominations and prevent the president from naming judges in their states.

“The blue-slip courtesy is just that — a courtesy,” Grassley said, adding that he will be less inclined to override a senator’s refusal to return a blue slip for district court nominees.

The two nominees who will now receive hearings, Judge David Stras and attorney Kyle Duncan, nominated to the US Court of Appeals for the Eighth Circuit and the US Court of Appeals for the Fifth Circuit, respectively, were previously blocked by Democratic Sen. Al Franken of Minnesota and Republican Sen. John Kennedy of Louisiana, both judges’ home-state senators.

Senate Majority Leader Mitch McConnell, who has called for the move for some time, said on the Senate floor that Grassley’s move was “sensible.”

Grassley “outlined a sensible use of the blue slip which involves consultation but does not lead to a one-senator veto of a nominee,” he said.

So far this year, at least four Democrats refused to return blue slips for Trump’s circuit court nominees: Franken, Sens. Jeff Merkley and Ron Wyden of Oregon, and Tammy Baldwin of Wisconsin.

Republicans are trying to jam through extremely conservative and controversial nominees

Following Grassley’s floor speech, Democratic Sen. Dianne Feinstein of California, ranking member on the Judiciary Committee and a staunch defender of the blue slip process, blasted Grassley’s decision.

“Chairman Grassley’s decision do away with a 100-year old Senate tradition just 10 months into the Trump administration couldn’t be more troubling,” she said in a statement. “The lengths to which Republicans are going to jam extremely conservative and controversial nominees through the Senate is unprecedented. What’s happening is diminishing the Judiciary Committee and the Senate and undermining the independence of the federal judiciary.”

She then listed roughly 10 of former President Obama’s nominees who did not get hearings because of the blue-slip process.

The burning of the blue slip is the latest product of what amounts to Trump’s attempt at quickly reshaping the federal bench and build a legacy early in his administration. His rapid pace of nominations and confirmations have outpaced predecessors, and, in September, he hit 65 combined nominations between appeals courts, district courts, the US Tax Court, and the US Court of Federal Claims.

“We will set records in terms of the number of judges,” Trump said recently during a joint press conference with McConnell, adding, “There has never been anything like what we’ve been able to do together with judges.”

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