The blue slip variations

The Senate Judiciary Committee has gotten down to work holding hearings on President Trump’s nominees to the federal appellate courts. The confirmation of these nominees has only begun to redress the substantial effect achieved by President Obama with the help of Harry Reid and the Democrats.

Although the Democrats have now gone to absurd lengths to throw sand in the gears of the confirmation process under President Trump, the pace has finally picked up. This weekend the New York Times took an alarmed look in Charlie Savage’s article on events so far.

Despite the progress to date, the nomination of Minnesota Supreme Court Justice David Stras to the Eighth Circuit remains in limbo. President Trump nominated Justice Stras to the Eighth Circuit early last May. His nomination has now been in limbo for six months.

Minnesota Senator Amy Klobuchar has returned her blue slip on Justice Stras. His nomination remains in limbo because Minnesota Senator Al Franken has declined to return his blue slip.

Justice Stras is widely supported by just about everyone who knows him in Minnesota. Although he pretended otherwise, Franken was unable to find anything in Justice Stras’s professional record to discredit him. Franken’s statement on Justice Stras amounts to little more than the expression of animus in search of a rationale.

It is not clear how Chairman Grassley will treat the withholding of a single senator’s blue slip on an appellate court nominee. Senator Grassley continues to hold his cards close to his vest. On November 2, however, the Senate Judiciary Committee Majority issued a memorandum to news media on the “History and Context of the Blue Slip Courtesy.” The memo emphasizes the variable nature of the blue slip practice (or “courtesy”) against the backdrop of the changing Senate rules regarding the filibuster. The text of the memorandum is prefaced by a handy set of bullet points:

‌• The blue slip process is a courtesy extended by Committee chairmen, not a binding Senate rule.

‌• Since the blue slip courtesy was created in 1917, only two chairmen (Sens. James Eastland and Patrick Leahy) had strict policies requiring two positive blue slips from home-state senators before the Judiciary Committee would consider a nomination.

‌• In 25 of the 36 years before Senator Grassley became Chairman, chairmen have allowed hearings on nominees despite negative or unreturned blue slips.

‌• The same senators who changed the Senate rules to ignore the views of 41 senators after evaluating a nominee now want to enable a single senator to block a nomination before the Committee can even review the nominee’s background and qualifications.

The memo concludes with this statement: “By eliminating the filibuster rule, the Democrats removed a tool for the minority to block nominees with negative or unreturned blue slips after the committee has evaluated nominees’ qualifications. They are now, because of their own actions, in the position of having to rely on an ahistorical interpretation of the blue slip courtesy at the Committee level to attempt to defeat nominees they oppose on ideological or political grounds before the full Committee reviews a nominee.” The memo characterizes “blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration” as “a more extreme example of counter-majoritarian practice” previously disapproved by the Democrats when they were in the majority.

I think it is fair to assume that the memo would not have been disseminated without Senator Grassley’s blessing as chairman of the Judiciary Committee. Those of us wondering what Senator Grassley will do with respect to blue slips now at least have some tea leaves to read. To me, the memo reads like a backgrounder for reporters explaining a course of action that is about to be taken (and should be).

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