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.

 

This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations.  Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.”  Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.”  Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.

First, consider the source of the statement.  As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration).  Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership.  So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview.  Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.

Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed.  The White House has studiously avoided nominating judges in states with Democratic Senators.  The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues).  Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).

So, if blue slips are not dead, why would McConnell declare it so.  I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip.  As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.

One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions.  As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have.  This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips.  For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration.  Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips.  In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips.  So far, the Trump Administration has 50 judicial nominees pending before the Senate.  Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon).  So, as such, why change the rules of a game you’re winning?  If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.

 

 

Let’s compare excerpts from the Senate Judiciary Questionnaires of two judicial nominees:

“In January 2017, I was asked separately by both Congressman Erik Paulsen and Congressman Tom Emmer if I would be interested in being nominated to fill a vacant position on the United States Court of Appeals for the Eighth Circuit.  I indicated I would be interested.  In early February 2017, Congressman Paulsen, Congressman Emmer, and Congressman Jason Lewis sent a letter to the White House recommending that I be nominated for the position.  Each congressman met with me separately.  Also in early February 2017, I corresponded and spoke with an official from the White House Counsel’s Office about the vacancy and my potential interest in the position…”

“There is a commission formed by Senators Baldwin and Johnson to recommend judicial candidates to the Senators.  I applied to that commission and was interviewed on November 18, 2014 in Madison, Wisconsin.  On May 7, 2015, Senator Baldwin asked for my permission to include my name on a list of candidates she sent to the White House for consideration…On October 28, 2015, I interviewed with staff from Senator Johnson’s office in Milwaukee, and on November 5, 2015, I interviewed with Senator Johnson at his office in Washington D.C.”

The first is the description of the judicial nomination process offered by Justice David Stras, nominated for a Minnesota seat on the Eighth Circuit, a state with two Democratic Senators.  The second is a description of the same process offered by Donald Schott, a Wisconsin attorney nominated by President Obama to a seat on the Seventh Circuit (but never confirmed).  At the time, Wisconsin had a Democratic and a Republican Senator.

Let’s look at other examples.  Here is Justice Joan Larsen’s path to a Michigan seat on the Sixth Circuit (Michigan has two Democratic Senators):

“Since March 9, 2017, I have been in contact with officials from the White House Counsel’s Office and the Department of Justice Office of Legal Policy about a potential federal judicial appointment.  On April 27, 2017, I interviewed with White House Counsel Don McGahn in Washington D.C.  On May 8, 2017, the President submitted my nomination to the Senate.”

In comparison, here is the path for Judge Carolyn McHugh, who was nominated by Obama to a Utah seat on the Tenth Circuit (Utah has two Republican Senators):

“In January 2013, I submitted a cover letter and resume to Senator Orrin Hatch and to Congressman Jim Matheson for a possible position on the Tenth Circuit.  On January 16, 2013, I interviewed with Senator Hatch and Senator Mike Lee, and on January 30, 2013, I interviewed with Congressman Jim Matheson.  On February 4, 2013, I was notified by Senator Hatch that he and Senator Lee would be recommending me to the White House for consideration.”  

The contrast is stark.  Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process.  Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.

 

Consultation under Obama

On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.  Specifically, the letter noted:

“The principle of senatorial consultation (or senatorial courtesy)…dates to the Administration of George Washington.  Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications for federal service.”

The letter goes on to state a bright-line rule on judicial nominees:

“…if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators.  For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.  

In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips:

• Louis Butler – Western District of Wisconsin
• Elissa Cadish – District of Nevada
• Alison Lee – District of South Carolina
• Jennifer May-Parker – Eastern District of North Carolina
• Arvo Mikkanen – Northern District of Oklahoma
• Victoria Nourse – Seventh Circuit Court of Appeals
• Natasha Perdew Silas – Northern District of Georgia
• Steven Six – Tenth Circuit Court of Appeals
• William Thomas – Southern District of Florida

When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips.  During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked:

• Donald Beatty – District of South Carolina
• Mary Barzee Flores – Southern District of Florida
• Rebecca Ross Haywood – Third Circuit Court of Appeals
• Lisabeth Tabor Hughes – Sixth Circuit Court of Appeals
• Abdul Kallon – Eleventh Circuit Court of Appeals
• Myra Selby – Seventh Circuit Court of Appeals
• Dax Erik Shepard – Northern District of Georgia
• Patricia Timmons-Goodson – Eastern District of North Carolina

 

Consultation under Trump

Under a Trump Administration, Senate Republicans’ dedication to the even-handed application of senatorial courtesy has dimmed.  Rather, some Republicans seem to be ready to trash the “special responsibility” they once defended.

At any rate, such rhetoric may end being just that: rhetoric.  Tradition and principles aside, there are many practical reasons for keeping the blue slip.  Even if Republicans seek to look only at short-term interests, there is one key number to keep in mind: two.  In order words, if all Democrats line up against a nominee, Republicans can only afford to lose two of their own Senators without risking the judge’s confirmation.  While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.  

In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.  If nothing else, it gives the nominees a champion in the convoluted Senate confirmation process.  To use the words of the Senate Republican Conference:

“[Republicans], as a Conference, expect [senatorial consultations] to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not.”

On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.^[1]  With over 136 current and future vacancies on the federal bench,^[2] more nominees will likely follow.  With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations, and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

The History of the Blue Slip (From Cumberland to Biden)

Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on.  When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the Senators representing the nominee’s home state.  The Senators then return the blue slip, indicating either approval or disapproval of the nominee.  If a home state Senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

The blue slip practice has a long history, going back at least one hundred years.^[3]  The first example of a Senator using a blue slip to oppose a nominee dates back to the Wilson Presidency, when Senator Thomas Hardwick (D-GA) objected to the nomination of U. V. Whipple.^[4]  Whipple’s nomination was subsequently rejected by the full Senate.

While the practice of using blue slips dates back a century, there is no consistent practice as to the effect of a negative blue slip on a nominee.  For approximately the first forty years of blue slip practice, a negative blue slip did not stop all action on a nominee.^[5]  However, in 1956, Chairman James Eastland (D-MS) modified committee policy, indicating that a negative blue slip (or failure to return one) would act as a veto on committee consideration of a nominee.^[6]In 1979, the rule changed again under new Chairman Edward Kennedy (D-MA), who stated that, in the absence of positive blue slips, he would have the committee vote on whether to proceed on consideration of the nominee.^[7]  In 1980, the Committee held a hearing on the nomination of James Sheffield despite a negative blue-slip from home state Senator James Byrd (I-VA).^[8]

In 1981, with President Ronald Reagan in office with a new Republican Senate, incoming Chairman Strom Thurmond (R-SC) announced that he would continue Kennedy’s blue slip policy, and would not necessarily view negative blue slips as reasons not to proceed on a nomination.^[9]  In 1983, Thurmond processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Senator Alan Cranston (D-CA).^[10]  In 1986, he held a hearing on the nomination of Albert Moon despite the objections of both his home state Senators, Daniel Inouye (D-HI) and Spark Matsunaga (D-HI).^[11]

In 1987, Democrats retook the majority, and Joseph Biden (D-DE), the incoming Chairman, announced a new blue slip policy.  Under Biden’s policy, negative blue slips would only block committee consideration in cases where the White House failed to adequately consult with home state Senators before choosing the nominee.^[12]  Under this new policy, the Committee processed (and the Senate confirmed) Vaughn Walker to a seat on the Northern District of California over the objection of Senator Cranston.^[13]

The Blue Slip in the Clinton and Bush Presidencies

In 1994, the “Republican Revolution” swept a new majority into the U.S. Senate, and propelled Senator Orrin Hatch (R-UT) to the Chairmanship of the Judiciary Committee.  While Hatch indicated that he would continue to follow Biden’s modified blue slip policy, in application, his policy allowed Senators could veto judicial nominations from their home state.

Notably, Senator Jesse Helms (R-NC) blocked the nominations of three Clinton choices for North Carolina seats on the Fourth Circuit, Judges James Beaty, James Wynn and J. Rich Leonard.^[14]  Similarly, Judge Helene White and Kathleen McCree Lewis, both nominated to Michigan seats on the Sixth Circuit were blue-slipped by Senator Spencer Abraham (R-MI), while Jorge Rangel and Enrique Moreno, nominated for Texas seats on the Fifth Circuit were blocked by Senator Phil Gramm (R-TX).^[15]

In 2001, when President Bush came to office, Hatch announced a modification in his blue slip policy, indicating that he would move forward on nominees, even without blue slips, provided that the White House had consulted with the home state Senators over the vacancies.^[16]

In 2003, Hatch moved the nomination of Carolyn Kuhl to the Ninth Circuit through Committee despite not receiving a blue slip from Senator Barbara Boxer (D-CA).^[17]  Later that year, Hatch moved three Michigan nominees to the Sixth Circuit over the objections of Senators Debbie Stabenow (D-MI) and Carl Levin (D-MI).^[18]  All four nominees, however, were blocked through filibusters by Senate Democrats.

In 2006, Democrats retook control of the U.S. Senate.  Incoming Judiciary Committee Chairman Patrick Leahy (D-VT) announced that he would only move on judicial nominees that had two blue slips returned.  As such, during the last two years of the Bush Presidency, a number of nominees were blue-slipped by Democratic Senators.  For example, Senators Jack Reed (D-RI) and Sheldon Whitehouse (D-RI) blocked consideration of Judge William Smith for a seat on the First Circuit.^[19]  Similarly, Senator Mary Landrieu (D-LA) blocked the nomination of David Dugas to a judgeship on the Middle District of Louisiana.^[20]

The pressure of blue slip approval forced the White House to start making “package deals” with Democratic Senators, offering them a chance to recommend nominees in exchange for their support for the White House’s picks.  In one notable instance, the Administration agreed to nominate previously blue-slipped Clinton nominee Helene White for the Sixth Circuit, in exchange for Michigan’s Democratic Senators supporting Raymond Kethledge, who had been nominated for a second seat.^[21]  In another case, the White House agreed to withdraw the nomination of Judge Gene Pratter to a seat on the Third Circuit, instead nominating Judge Paul Diamond, who was deemed acceptable to Senator Bob Casey (D-PA).^[22]

Blue Slips in the Obama Presidency

In 2009, with the Obama Administration making judicial nominations, Leahy reiterated his blue slip policy, indicating that he would not move any nominees without blue slips from both the home state senators.  This strict policy gave Republican Senators significant leverage over the Obama Administration in discussions over judicial nominations.  The first Senator to exercise the blue slip privileges was Senator David Vitter (R-LA), who blocked the nomination of Brian Anthony Jackson to a seat on the Middle District of Louisiana until the White House committed to keeping Bush-era U.S. Attorney Jim Letten on the job.^[23]  Upon a White House commitment to keep Letten, Vitter returned his blue slips and allowed Jackson to be confirmed.

While Vitter used the blue slip process to secure support for an unrelated nomination, other Senators used it to protect their prerogative to choose nominees for the state.  Senators James Inhofe (R-OK) and Tom Coburn (R-OK) used the blue slip process to block confirmation on Arvo Mikkanen’s nomination to a seat on the Northern District of Oklahoma, claiming they were not consulted before the nomination was made.^[24]  Similarly, Senators John Cornyn (R-TX) and Kay Bailey Hutchison (R-TX) refused to approve any nomination to Texas courts that was not vetted through their selection committee, cutting Democrats out of the process.^[25]  Senators Ron Johnson (R-WI) and Dan Coats (R-IN) blocked the nominations of Victoria Nourse and Myra Selby respectively to seats on the Seventh Circuit Court of Appeals, arguing that the nomination should emerge from a bipartisan nominating committee.^[26]

Other Senators used blue slips to block nominees based on substantive objections.  Senators Lindsay Graham (R-SC) and Tim Scott (R-SC) blocked Judge Alison Renee Lee’s nomination to serve on the U.S. District Court for South Carolina based on allegations that she was “soft-on-crime”.^[27]  Senator Dean Heller (R-NV) blocked the nomination of Judge Elissa Cadish for the U.S. District Court in Nevada based on her pre-Heller opinion that the Second Amendment does not protect the right to bear arms for an individual.^[28]

On rare occasions, the White House was able to successfully use leverage to force a blue-slipping Senator to give way.  Senator Robert Menendez (D-NJ), for example, was forced to withdraw his blockade of Judge Patty Shwartz for a seat on the Third Circuit under pressure from liberal groups.^[29]  Similarly, pressure from civil rights groups pushed Sen. Marco Rubio (R-FL) to return a blue slip on Judge Brian Davis’ nomination to the Middle District of Florida.^[30]

Not all Republican Senators exercised their blue-slip leverage s vigorously.  Some took a more hands-off approach, allowing the White House and their Democratic colleagues to take the lead on judicial nominees for their state.  Sen. John Boozman (R-AR), for example, supported the nominations of five Arkansas judges proposed by his colleague Sen. Mark Pryor (D-AR).^[31]  Similarly, Senators Lamar Alexander (R-TN) and Bob Corker (R-TN) backed two circuit and six district court appointments by the Obama Administration.^[32]  Additionally, they supported the Administration’s unsuccessful nomination of Edward Stanton to a seat on the U.S. District Court for the Western District of Tennessee.^[33]  Senator Roy Blunt (R-MO) returned blue slips on every judicial nominee for his state, regardless of whether he supported the nominee on the merits.  Notably, he opposed the nomination of Judge Ronnie White to serve on the the Eastern District of Missouri, and Stephen R. Bough to serve on the Western District of Missouri, but nonetheless allowed the nominees to be considered by the committee, and eventually confirmed.^[34]

Other Republican Senators used the leverage of blue slips to work out nomination deals with their Democratic colleagues.  Senators Bob Casey (D-PA) and Pat Toomey (R-PA) worked out a deal that would allow Toomey to put forward one district court judge for every three that Casey named.  Under this deal, Toomey was able to secure the confirmation of several Republican judges.^[35]   Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) had a similar deal, which allowed Kirk to name a number of Republicans to the Northern District of Illinois.^[36]

In other states, the White House was forced to work out package deals with Republican Senators that would allow long-vacant judgeships to be filled.  By 2013, the overworked court in Arizona, had six out of its thirteen judgeships vacant due to an impasse between Senator John McCain (R-AZ) and the White House over the nomination of Rosemary Marquez.^[37]  Marquez was eventually confirmed as part of a package deal with five other nominees, including McCain protege Diane Humetewa.^[38]  Similarly, the White House was able to appoint David Hale, a Democrat, to the Western District of Kentucky only when paired with Greg Stivers, a Republican.^[39] 

The Administration’s willingness to work with Republican Senators on nominations was tempered by pressure from its own base.  For example, in 2013, the White House and Senators Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) announced a deal that would fill two seats on the Eleventh Circuit and four seats on the Northern District of Georgia.^[40]  One of the nominees proposed by the Senators, Judge Michael Boggs, attracted fierce opposition from civil rights groups due to his anti-gay rights stances as a state legislator.^[41]  Ultimately, the White House was forced to jettison Boggs, and leave the seat vacant.

At times, even pre-approving nominees with Republican Senators did not guarantee their future support.  Notably, Senator Pat Roberts (R-KS) initially expressed support for the nomination of Steve Six to the Tenth Circuit.  However, under pressure from conservative groups, he and Sen. Jerry Moran (R-KS) came out in opposition to Six shortly after his hearing, essentially killing his nomination.^[42]  Similarly, Obama’s nomination to the Northern District of Georgia after Boggs, Judge Dax Erik Lopez, a Republican and a member of the conservative Federalist Society, was blocked by Sen. David Perdue (R-GA) after conservative groups objected to Lopez’s membership in Latino civic organizations.^[43]  Sen. Rubio blocked two nominees to the Southern District of Florida, Judge William Thomas, and Mary Barzee Flores, after initially indicating his support to the White House.^[44]

Ultimately, Leahy’s strict adherence to blue slips placed the Obama Administration in an impossible situation.  Republican Senators frequently rejected nominees proposed by the Administration while either failing to offer names of their own, or suggesting picks that were too conservative.  As negotiations over nominees fell apart, many states with Republican Senators saw vacancies linger unfilled for years.

Blue Slips in the Age of Trump

Shortly after the election of President Trump, Judiciary Committee Chairman Chuck Grassley (R-IA) announced that he would continue to honor the strict blue slip policy that Leahy set out.^[45]  This theoretically gives Democrats the same leverage over judicial nominations that Republicans had in the Obama Administration.  In previous Republican administrations, Democratic Senators generally took a hands-off approach to judicial nominations, rejecting nominees only when they were viewed as too extreme.  However, after the increased use of blue slipping under the Obama Administration, it is possible that Democrats will be emboldened to demand pre-approval of judicial nominees.  As such, the Administration may have to rely on package deals in states with Democratic Senators, agreeing to nominate Democrats to some seats on the federal bench.

Additionally, Republican Senators are themselves pushing for the renomination of Obama nominees left unconfirmed at the end of the 114th Congress.  Senators Mike Crapo (R-ID) and Jim Risch (R-ID) have already asked Trump to renominate Judge David Nye, the unconfirmed Obama selection for a vacancy on the U.S. District Court in Idaho.^[46]  Senator Toomey has asked Trump to renominate Judge Susan Paradise Baxter, a Democrat nominated by Obama for a seat on the Western District of Pennsylvania.^[47]

With Republicans in the majority, and the filibuster for lower court nominations abolished, the blue slip is one of the only tools Democrats have to temper the ideology of Trump’s judicial nominations.  While Republicans used it to great effectiveness to prevent Obama from filling vacancies, it remains to be seen how aggressively Democrats will wield the blue slip.

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