Senate Majority Leader Mitch McConnell made a surprise statement to The Weekly Standard that could crush one of Democrats’ biggest weapons in combating President Donald Trump’s rapid nominations to the federal bench.
McConnell said that “blue slips” — a tradition that allows senators to give or withhold their blessing for a judicial nominee from their state — will simply be viewed as a confirmation of how a senator will vote on circuit court judges, breaking with the norm of needing a blue-slip approval to move forward with a judicial nominee.
The blue slip will be treated “as simply a notification of how you’re going to vote, not as an opportunity to blackball,” McConnell said, adding that the tradition is not a Senate rule and has been ignored more than it has been followed by previous Senate Judiciary Committee chairs.
The blue-slip process gives the party that does not control the White House leverage over the president’s nominations, and some Democrats have used that power to deny a handful of Trump’s nominees from moving forward in the Judiciary Committee. That, in turn, makes it easier for Trump to advance nominees in states that do not have any Democratic Senate representation.
The idea behind the blue slip is to better involve home state senators in consulting with the White House over who will be representing (or serving within) their state on the federal bench.
With Democrats now having the ability to, in many states, prevent Trump’s judicial nominees from advancing, McConnell told The New York Times last month that he thought the blue-slip practice should be scrapped for circuit-court nominations (though it would remain the same for other judicial nominees). That sparked backlash from Democrats, who said the move would be hypocritical, as Republicans staunchly defended the blue-slip process while President Barack Obama was in office.
On Wednesday, McConnell went much further in his comments, which came after Politico reported Monday night that he was receiving heat from influential outside conservative groups for the slow pace of confirmation of Trump’s judicial nominees. The push from those conservative groups came as Trump recently hit 65 combined nominations between appeals courts, district courts, the US Tax Court, and the US Court of Federal Claims. There are currently roughly 140 vacancies on the federal bench, providing Trump with the opportunity to cement a lasting legacy on the courts.
In turn, the president has nominated judges at a breakneck pace, far outpacing his predecessors. But relatively few of his choices have been confirmed.
McConnell does not have direct control over how blue slips are handled by the Senate Judiciary Committee. That is up to committee chairman Chuck Grassley, an Iowa Republican.
Senate Minority Leader Chuck Schumer implored Grassley to uphold the blue-slip process.
“The Senate has fewer and fewer mechanisms that create bipartisanship and bring people to an agreement,” Schumer said in a statement. “The blue slips are one of them. It’s just a shame that Senator McConnell is willing to abandon it for circuit court judges. We hope that Chairman Grassley, who has always believed in the traditions of the Senate, will resist Senator McConnell’s request.”
In a statement to Business Insider, Grassley spokesperson Taylor Foy said the Iowa senator “will determine how to apply the blue slip courtesy for federal judicial nominees, as has always been the practice.”
She did not directly address Grassley’s comment, but said that, “Over the years, chairmen have applied the courtesy differently, but the spirit of consultation has always remained.”
“Under Chairman Grassley’s leadership, blue slips have been returned from home state senators on both sides of the aisle, including from seven Democrats for President Trump’s circuit court nominees,” she added, noting that the committee has held hearings for 24 of Trump’s judicial nominees.
“Senator Grassley has said that he expects senators and the president to continue engaging in consultation when selecting judicial nominees, and that, as in the past, any abuses of the courtesy would be addressed on a case-by-case basis,” she said.
She pointed to Grassley having sought to pull out all the stops in order to move the confirmation process along as quickly as possible, noting that Grassley scheduled a hearing next week for five of Trump’s nominees, and that he called for the Senate to stop holding recesses until confirmation votes on the 10 nominees currently awaiting such votes can be held.
Grassley’s counterpart, Senate Judiciary Committee ranking member Dianne Feinstein, a California Democrat, pointed to McConnell’s past personal use of the blue slip to block one of Obama’s circuit court nominees in 2016.
“Leader McConnell in 2016 used the blue slip process to block the nomination of Justice [Lisabeth Tabor] Hughes — after admitting that the Obama administration had tried to work with him for nearly two years to find a consensus candidate,” she said. “She was one of 18 judicial nominees that Republican senators blocked during the last administration — back when they valued the blue slip.”
“If Republicans pursue this path and eliminate the blue slip, the genie won’t be put back in the bottle,” she continued. “This change could affect them as well.”
The California senator then criticised the Trump administration for not respecting “the role of Congress,” which in turn could cause GOP senators to be “faced with nominees that don’t reflect their own home states.”
“It’s no secret that President Trump has differences with some Republican senators from states like Arizona, Tennessee, Maine, Alaska and elsewhere — they may be in the same boat as Democratic senators when they have judicial vacancies,” she said, appearing to highlight Sens. John McCain, Jeff Flake, Bob Corker, Susan Collins, and Lisa Murkowski. “Eliminating the blue slip takes power away from Republican senators in the event they are bypassed on nominations — under this administration or any other.”
Carl Tobias, a University of Richmond professor who is an expert on judicial nominations, told Business Insider in an email that it was “odd” for McConnell to “pronounce without consulting” Grassley.
“Both GOP and Dems have honored the blue slip tradition and left its use to the discretion of the chairs of each party,” he added. “It seems unlikely that McConnell would order Grassley to make that change, and Grassley has done all he can to avoid resolving the issue in an attempt to be fair. He knows that GOP senators used blue slips to stop Obama nominees for all eight years of his tenure, and that it would be unfair to change it now.”
Tobias said that, if the change were made, it “would be detrimental to the Senate” and would “eliminate one of the last protections of the minority.”
“The change would exacerbate the confirmation wars, continue the process’ downward spiral, worsen Senate dysfunction and make the body more like the House,” he said.
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