The Franken fallout

Minnesota Senator Al Franken seeks to bar Minnesota Supreme Court Justice David Stras from consideration to fill a vacancy on the Eighth Circuit. He has done so by withholding his blue slip on Justice Stras. President Trump nominated Justice Stras to the Eighth Circuit four months ago.

Before announcing his opposition, Franken asserted that he was studying Stras’s record. The Associated Press reported on August 24: “A spokesman for Franken said this week that the Democratic senator is still reviewing Stras’ ‘lengthy record’ before giving his approval, faulting the White House for putting Stras’ name forward without consulting his office about possible candidates.”

When he announced his opposition to Stras last week, however, Franken cited nothing from Stras’s scholarly or judicial record. Franken has posted his statement online here. Franken found Stras guilty of having served as a law clerk to Justice Thomas, of having spoken favorably of Justice Scalia and of having associated with the (nonpartisan) Federalist Society.

Franken gravely expressed his supposed concerns: “I have grown concerned that, if confirmed to the federal bench, Justice Stras would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia, justices who the nominee himself has identified as role models.”

Franken had more in this vein: “Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box.”

This is in equal parts distasteful and disingenuous. It reeks of McCarthyite guilt by association, but in this case the associations are all to be admired. There is a reason Franken can find nothing in Stras’s record to support his fantasia. In truth, Justice Stras is his own man.

Yesterday the Wall Street Journal called Franken out in the editorial I wrote about in “The Franken factor.” Lawrence O’Donnell invited Franken to respond to the Journal editorial. Franken touted the interview in the tweet below. He also touted the column by Walter Mondale defending him in the Star Tribune this morning.

Nothing in Stras’s record suggests that he would fail “work on behalf of all Minnesotans” (and Americans) if he were to serve on the Eighth Circuit. He certainly has done so on the Minnesota Supreme Court. Franken is uninhibited by shame. The lies continue.

If Franken succeeds in blocking Justice Stras, the nomination is likely to go to a lawyer from an Eighth Circuit state unlike Minnesota, a state with two responsible senators each — Iowa, say, or Arkansas. Does Franken think such a nominee will “work on behalf of all Minnesotans”? I do, but not in the sense that Franken pretends to concern himself with. He continues to exploit the ignorance of voters, if not of the MSNBC crowd.

In light of Franken’s behavior, the Journal called on Senate Judiciary Committee Chairman Grassley to disregard Franken’s failure to return his blue slip. Franken demonstrates the absurd lengths to which the blue slip business can be taken. He is a disgrace. Something’s gotta give.

Today the New York Times reports that Senate Majority Leader McConnell is “advocating that the blue slip be made strictly advisory when it comes to appeals court nominees[.]” Reporter Carl Hulse quotes McConnell speaking in an interview for a Times podcast: “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.” Hulse adds that McConnell also said he favored retaining the blue slip authority for district court judges.

I take this as a preview of coming attractions, but we shall see.

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