Time to Do Away With the Blue Slip

The “blue slip”–the power of senators to block judicial nominations within their states–is a venerable Senate tradition that has long outlived its usefulness. Similar to the filibuster, liberals view the blue slip either as incorrigible obstructionism or as the height of prudent constitutionalism, depending only on which party’s president is nominating judges.

Thus, when Barack Obama was doing the nominating, Jeffrey Toobin, in a New Yorker article headlined “Blue-Slip Battle: The Senate Obstructionists’ Secret Weapon,” wrote:

[A]s the blue-slip process illustrates, the Senate remains a balky, hidebound, and inefficient institution, and the President’s opponents will continue to do their best to keep it that way.

On the other hand, now that Donald Trump is in the White House, the New York Times sees the blue slip as the Democrats’ avenue to “impede the Trump administration’s judicial onslaught.” “Judicial onslaught” meaning, in this case, nominating judges to fill vacancies.

Yesterday, USA Today reported on the blue slip controversy, based largely on an interview with my friend Mark Holden. The reporter doesn’t waste any time signaling which side she is on (although in all likelihood, she would be on the other side if Hillary Clinton were president):

The influential donor network tied to billionaire Charles Koch is taking aim at a longstanding Senate tradition that allows Democratic senators to block judicial nominees from their states, as conservatives race to seize on one-party control of Washington to rapidly reshape the federal judiciary.

(Emphasis added.) Again, by the dastardly means of appointing judges to fill vacancies.

“Having a home-state senator have the ability to slow down the process, in our opinion, doesn’t make sense under the Constitution,” Mark Holden, a top official in the Koch network, told USA TODAY.
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Removing the blue-slip obstacle could help Trump reverse, in a single term, the Democrats’ advantage on the nation’s 13 federal appeals courts and shape the federal judiciary for decades.

Currently, nine of the 13 appellate courts have a majority of Democratic presidents’ nominees.
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Holden said many of the Koch donors are “incensed by the obstruction in D.C. and think this is a key issue and are going to make their opinions known to their senators” and key players, such as [Senate Judiciary Committee Chairman Charles] Grassley.

The blue slip tradition is relatively recent, dating only to the early 20th century. It is found nowhere in the Senate rules, but rather is followed (or, sometimes, not) at the discretion of the Judiciary Committee chairman. So far, at least, Grassley has not indicated that he intends to do away with the blue slip.

The Democrats don’t want to admit that they are merely partisan obstructionists, so they pretend that their vetoing of judicial nominations is a matter of principle. They object to the fact that the Federalist Society and the Heritage Foundation have been involved in vetting potential nominees.

Here in Minnesota, we are seeing the blue slip in action. The New York Times reported, at the link above, that Senators Al Franken and Amy Klobuchar may be trying to block the nomination of eminently qualified Minnesota Supreme Court Justice David Stras to the 8th Circuit Court of Appeals:

Take David R. Stras, a member of the Minnesota Supreme Court and a conservative favorite who was on Mr. Trump’s list of potential nominees for the United States Supreme Court. He could now find his nomination to the United States Court of Appeals for the Eighth Circuit at the mercy of Senators Al Franken and Amy Klobuchar, two Minnesota Democrats on the Judiciary Committee. Mr. Franken called the nomination “the product of a process that relied heavily on guidance from far-right Washington, D.C.-based special interest groups — rather than through a committee made up of a cross-section of Minnesota’s legal community.”

Scott wrote here about credible reports that Senator Amy Klobuchar is threatening to blue-slip Justice Stras’s nomination to secure the reappointment of a Democrat as U.S. Attorney for Minnesota.

What to make of the fact that Franken and/or Klobuchar may be standing between an obviously qualified nominee and an 8th Circuit post? A reader writes:

MN Supreme Court Justice Stras’s nomination to the 8th Circuit was supported by three of Stras’s former liberal members of the state Supreme Court, including Alan Page. Franken nevertheless raised a concern about the fact that the Federalist Society worked with the White House in compiling the lists of potential judicial nominees as a reason to slow down the confirmation process. The blue slip process would allow him to put a hold on this well-qualified judge because of Fed Soc (even though the Left has relied on a liberal special interest group, the American Bar Association, in making its judicial nominations.)

In addition, this is a circuit court nomination, not a Minnesota federal district court nomination. Thus, Franken may be taking a position that will deprive the other six states in the circuit of having a well-qualified judge due to his political grandstanding. The 100-year-old blue slip is one of the arcane, “dungeons and dragons” type rules that should not have any role in the constitutional framework of the Senate’s advise and consent power on judicial nominees. It is a cronyist system that is contrary to the constitutional process and should be done away with.

Amen. We all know that next time the Chairman of the Senate Judiciary Committee is a Democrat and the President is also a Democrat, the blue slip by Republican senators will be abolished. Why wait? It is time to do away with this non-legal and non-constitutional tool of obstruction. Senator Grassley, the ball is in your court.

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