For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previous statements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).
Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy. You can make arguments on either side.
Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:
- Former Indiana Supreme Court Justice Myra Selby
- U.S. District Court Judge Abdul Kallon
- Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood
- Kentucky Supreme Court Justice Lisabeth Hughes
Let’s instead focus on what I keep asking myself about Grassley’s announcement:
What was the Need?
I have yet to find the masses of Trump appellate nominees being blocked by blue slips. Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit. In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so. As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips. So, why the urgency?
Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators. But, in his statement justifying his actions, Grassley made no mention of this. Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.
I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate. With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections. Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.
At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.