One of the biggest battles in Washington involves a century-old tradition and Trump's quest to remake the courts

  • Chuck GrassleyAlex Wong/Getty ImagesChuck Grassley.

    The Senate is engaged in a fierce battle over the future of the “blue slip” process.

  • It’s one of the only pieces of leverage the party that doesn’t control of the White House has over judicial nominations — which President Donald Trump is making at rapid pace.
  • Republicans who spoke of the value of the practice when President Barack Obama was in office are now seeking for it to be slightly curtailed.

A massive battle has erupted in the Senate over the future of what is known as the “blue slip” process, and its resolution will likely have a defining effect on President Donald Trump’s efforts to remake the federal judiciary.

The blue slip is a Senate tradition in which senators can give or withhold their blessing for a judicial nominee from their state — which 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.

That could be a big concern for Trump, who has been moving at a breakneck pace to secure what one Democratic senator called “the single most important legacy” of his administration. As Trump has seen his legislative agenda stall in a Congress where both chambers are controlled by the GOP, judicial nominations provide a way for the president to achieve something consequential early in his presidency.

With Democrats now having the ability to — in many states — prevent Trump’s judicial nominees from advancing, Senate Majority Leader Mitch McConnell told The New York Times last week that he thought the blue slip practice should be scrapped for circuit court nominations.

“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” McConnell told the Times, adding that he still favoured keeping the practice in place in its current form for district court judges.

But whether or not that tradition is followed is not up to McConnell. It comes down to whether Senate Judiciary Committee Chairman Chuck Grassley decides to stick with the process. Speaking to The Washington Times last week, Grassley said he hasn’t made up his mind, telling the publication, “You need to ask me in a month.”

Despite what McConnell says now, Republicans argued in favour of honouring the blue slip process when they didn’t control the White House. A Democrat-led Judiciary Committee honored their wishes.

Several circuit court vacancies were left open for years by the end of President Barack Obama’s second term because Republican senators refused to return blue slips and advance his nominees. Though the denial of a blue slip does not prevent a judge from being approved, both Democratic and Republican chairmen of the Senate Judiciary Committee honored the process, declining to advance nominees when home-state senators refused to provide their approval.

And now, with Republicans in the White House, Democrats hold the cards.

‘It isn’t an invitation to thwart the president’s power to nominate’

Republican Sen. Mike Lee of Utah, a member of the Judiciary Committee, told Business Insider in a statement that the blue slip process “should be used to prompt consultation between the Senate and the White House,” but that it “isn’t an invitation to thwart the president’s power to nominate.”

A number of conservatives have taken issue with the blue slip process recently, saying that Democrats are using it just to stonewall the president.

Carrie Severino, the chief counsel of the Judicial Crisis Network, a group that has gone to bat to defend Trump’s nominees with large ad buys, told Business Insider in a recent interview that the practice “is not something” Democrats “can be allowed to abuse,” adding that it is not longstanding tradition for the refusal of a blue slip to mean a nominee cannot move forward. She added that Democrats “are trying to create a filibuster of one.”

Democrats, on the other hand, have pointed to hypocrisy on behalf of Republicans who touted the blue slip process while Obama was president. They have also insisted that they are not using the process to obstruct the president, but to ensure both proper vetting of the nominees and that they are consulted on nominations from their states.

Democratic Sen. Chris Coons of Delaware, a member of the Judiciary Committee, told Business Insider that the blue slip process has historically been “followed by members of both parties” and “ensures senators are consulted regarding nominees for seats from their home states.”

“Judges are appointed with lifetime tenure, so it is critical that senators have the ability to secure judges for their home states that are qualified for their positions,” Coons said.

“This isn’t a partisan issue, either — this allows Republican senators to prevent Democratic presidents from confirming unqualified or inappropriate judges for their home states, and vice versa,” he continued. “The blue slip process encourages bipartisanship, too, and it increases the chances of consensus candidates. Ending the blue slip process would diminish the ability of senators to provide input based on the local needs of their states, making it increasingly difficult for the Judiciary Committee to function in a bipartisan way.”

Pointing to past statements from McConnell and other Republicans, Democratic Sen. Sheldon Whitehouse, a Judiciary Committee member, told Business Insider in a statement that the practice “ensures that home-state senators and the people they represent can weigh in on the judges who will serve them.”

“Republicans, Leader McConnell and Chairman Grassley among them, have taken advantage of this tradition for decades,” Whitehouse said. “People who claim to be Senate institutionalists should not engage in wholesale destruction of Senate traditions just for immediate partisan advantage.”

Democratic Sen. Dianne Feinstein of California, the ranking member on the Judiciary Committee, has issued multiple statements over the summer taking aim at those on the right who chastised the blue slip process.

“I want to set the record straight with respect to blue slips,” she said in a July statement. “The blue slip has been used since 1917 and history is being misrepresented in a brazen attempt to destroy the Senate’s prerogative to ‘advise-and-consent’ on judicial nominees. … It was always honored during the Obama administration — even when Republicans did not return blue slips for up to two and a half years.”

“The bottom line is that no circuit court nominee has been confirmed without two blue slips from home-state senators since at least 1981,” she added. “As far as this senator is concerned, no senator should be chastised for thoroughly vetting nominees using a tool that’s been around for 100 years.”

Feinstein took issue with organisations such as the Judicial Crisis Network criticising the process, saying that they, The Wall Street Journal editorial board, and the conservative megadonor Koch brothers didn’t share “a lot of concern” when Republicans refused to return blue slips for some of Obama’s nominees.

The issue turned hot recently after a trio of Democratic senators refused to provide blue slips for two of Trump’s judicial nominees.

The first instance was when Democratic Sen. Al Franken of Minnesota refused to sign off on Trump’s nomination of Minnesota Supreme Court Judge David Stras for a vacancy on the 8th US Circuit Court of Appeals earlier this month. Franken said he could not support Stras, nominated by Trump in March, after studying his record, and would not return a blue slip to the committee.

Franken was followed by Sens. Jeff Merkley and Ron Wyden of Oregon later in the same week. The Oregon Democrats announced they would block Ryan Bounds, an assistant US attorney in Oregon, from a seat on the 9th US Circuit Court of Appeals because he had not been approved by a bipartisan judicial selection committee in their state.

Trump has an unprecedented 140-plus vacancies to fill, some of which are the direct result of Republicans refusing to provide blue slips to Obama’s nominees. And 30 states have at least one senator who caucuses with Democrats. Though his nominees have received blue slips from Democratic senators in Colorado, Michigan, and Indiana, Trump has so far mostly avoided naming judicial nominees for district and circuit courts from states represented by at least one Democrat.

Roughly 80% of Trump’s nearly 50 nominees to these courts have come from states represented by two senators from his party — a much higher percentage than that of Obama’s nominees from such states at the same point in his presidency. Just five of Trump’s nominees hail from states with two Democratic senators.

Changing the rules

While Grassley has not yet made any conclusive statements on whether the Judiciary Committee plans to honour the blue slip process, he has signalled the rules might change.

Earlier this year, he said on C-SPAN’s “Newsmakers” program that he believes “the blue slip is more respected for district court judges historically than it has been for circuit.”

But in 2015, Grassley vowed to stick by the system no matter who was elected president, writing in the Des Moines Register.

“I appreciate the value of the blue-slip process and also intend to honour it,” he said. And a Grassley spokesperson told The Washington Post earlier this year that Grassley “fully expects senators to continue to abide by” the tradition.

Should the blue slip be scrapped for circuit court judges, Trump would seemingly have free rein to nominate from the more than half of states where he was likely to face strong opposition. Since then-Senate Majority Leader Harry Reid in 2013 killed the filibuster for lower-court nominees in an effort to help push through more of Obama’s choices, judges need just a 51-vote majority for confirmation.

Republicans currently hold a 52-seat majority, plus the tie-breaking vote from Vice President Mike Pence.

The Republican ‘double standard’

There is evidence that backs up both sides’ arguments on the historical use of the blue slip. As the Post reported earlier this year, objections by home-state senators did not block nominations until the 1950s when, during the civil rights movement, southern senators wanted more of a say over what judges would represent their states. They succeeded in getting that say, but only for a short while, according to a Congressional Research Service report, which noted that “since 1979, the impact of negative blue slips has varied as leadership in the Senate Committee on the Judiciary has changed.”

“We’ve never really had an absolute blue-slip process on circuit court judges, so if the Democrats are trying to do that, that’s wrong,” Republican Sen. Orrin Hatch of Utah, a former Judiciary Committee chair, told The Hill.

But writing in 2014 when Obama was in office, Hatch wrote in an op-ed, “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” then-Judiciary Committee Chair Patrick Leahy, a Vermont Democrat, “has preserved the blue slip process,” he wrote. “It should stay that way.”

Indeed, in 2009, every Senate Republican, which included Hatch and McConnell, signed a letter to Obama at the start of his term that laid out their belief in the necessity of consultation with home-state senators for judicial nominations. The letter also stated that senators expected the blue slip process to be maintained “regardless of party affiliation.”

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter stated. “Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation. And we will act to preserve this principle and the rights of our colleagues if it is not.”

That goes to what Carl Tobias, a University of Richmond professor and expert on judicial nominations, said to Business Insider in a recent interview.

When it comes to a discussion of the blue-slip process, there’s a “double standard.”

Speaking to Business Insider in an email exchange Tuesday, Tobias said there is ample evidence of that double standard, such as when McConnell, who is now calling for the process to be abolished on circuit court nominees, blocked an Obama nominee by not returning his blue slip.

“Moreover, GOP senators blue slipped many circuit and district nominees in all eight years of Obama’s tenure and Sen. Leahy and Sen. Grassley as chairs honored all of those blue slips for circuit and district nominees even when only one senator objected,” he said. “There is no persuasive reason for making an exception for circuit nominees.”

Republican and Democratic senators “agree that they are more critical than district nominations,” he continued, adding that circuit court rulings apply to multiple states, make more policy, and are the courts of last resort for 99% of cases, since the Supreme Court hears so few.

As for Grassley, Tobias said he has been “very fair” in chairing the committee. Tobias said that while Grassley is facing a lot of pressure to make the change on blue slips, he can stall for a while before having to come to a decision.

“He has not forced the issue and has many nominees who can receive hearings in the near term without changing blue slips,” he said.

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