In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction.  In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties.  Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration.  This period covers three Democratic Administrations and three Republican Administrations (twenty years of each).  In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

• U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
• U.S. Magistrate Judge J. Rich Leonard – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
• Judge Helene White of the Michigan Court of Appeals – nominated in 1997 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
• Jorge C. Rangel – nominated in 1997 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
• North Carolina Appeals Court Judge James Wynn – nominated in 1999 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
• Enrique Moreno – nominated in 1999 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
• Kathleen McCree Lewis – nominated in 1999 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
• James Lyons – nominated in 1999 to the Tenth Circuit (blue slipped by Republican Sen. Wayne Allard)
• U.S. District Judge Robert Cindrich – nominated in 2000 to the Third Circuit (blue slipped by Republican Sen. Rick Santorum)
• Victoria Nourse – nominated in 2010 for the Seventh Circuit (blue slipped by Republican Sen. Ron Johnson)
• Steven Six – nominated in 2011 for the Tenth Circuit (blue slips returned but blocked upon request by Republican Sens. Pat Roberts and Jerry Moran)
• Myra Selby – nominated in 2016 for the Seventh Circuit (blue slipped by Republican Sen. Dan Coats)
• U.S. District Judge Abdul Kallon – nominated in 2016 for the Eleventh Circuit (blue slipped by Republican Sens. Richard Shelby and Jeff Sessions)
• Justice Lisabeth Hughes – nominated in 2016 for the Sixth Circuit (blue slipped by Republican Sen. Mitch McConnell)
• Rebecca Ross Haywood – nominated in 2016 for the Third Circuit (blue slipped by Republican Sen. Pat Toomey)

During Republican Administrations:

• Stuart Summit – nominated in 1987 to the Second Circuit (processed by Judiciary Committee but blocked upon request of Sen. Alphonse D’Amato)
• Stephen Murphy – nominated in 2006 to the Sixth Circuit (blue slipped by Democratic Sens. Carl Levin and Debbie Stabenow but ultimately confirmed to the District Court)
• Shalom Stone – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sens. Frank Lautenberg and Bob Menendez)
• E. Duncan Getchell – nominated in 2007 to the Fourth Circuit (blue slipped by Republican Sen. John Warner and Democratic Sen. James Webb)
• U.S. District Judge Gene Pratter – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sen. Bob Casey)
• Rod Rosenstein – nominated in 2007 to the Fourth Circuit (blue slipped by Democratic Sens. Barbara Mikulski and Ben Cardin)
• U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked.  While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators.  As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on.  During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states.  In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans.  In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals.  In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees.  Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed.  Of these, 35 were from states requiring blue-slips from Republican senators.  Of these 35…

• Five were District Court Judges originally nominated by Republican Presidents: Judges Fred Parker, Marcus, Traxler, Sotomayor, & Williams.
• Four were District Court Judges nominated by Democratic Presidents but with strongly conservative records on the trial court: Judges Cabranes, Murphy, Hull, & Rendell.
• Two were directly recommended by Republican senators: Judges Silverman & Tallman.
• Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed.  Of these, 26 were from states with Republican home-state senators.  Of these 26…

• Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.
• Three were State Court Judges/Officials nominated by Republican Governors: Judge Christen, Phillips, & McHugh.
• One was recommended by Republican senators: Judge Higginson.
• Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.
• Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.
• Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed.  Of these, 31 were in states that had Democratic home-state senators.  Of these 31:

• Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.
• None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).
• One was recommended by a Democratic senator: Judge Helene White.
• Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall?  Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench.  Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges.  In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration.  Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals.  In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.