GOP senators are talking about changing an obscure Senate tradition to make it more difficult for Democrats to block certain judges from advancing to a confirmation hearing.
The change to the “blue-slip rule” would involve preventing individual senators from blocking nominees to circuit courts that have jurisdiction over several states.
If the rule change were made, it would make it easier for President Trump to win confirmation for his circuit court picks. Trump currently has 20 vacancies on the lower courts of appeals to fill.
GOP members on the Senate Judiciary Committee say this would leave the tradition in place for district court vacancies, meaning a single senator could still hold up a nomination to those courts.
{mosads}“I want to separate it,” said Sen. Jeff Flake (R-Ariz.).
“Blue slips for district court judges has been time honored and I think needs to stay,” he said. “There is a question now does it apply to circuit court judges. That history is a little more mixed and I don’t think myself it ought to apply there.”
Sen. John Cornyn (Texas), the No. 2 Republican in the Senate, seemed to agree.
“I think there’s a difference between the blue-slip application at the district court level where the court is contained wholly within a state as opposed to a circuit court, which covers multiple states,” he said.
“The idea that an individual senator could veto in effect a nominee at the circuit court level is really unprecedented and I think needs to be carefully looked at.”
Sen. Tom Cotton (R-Ark.) also raised the prospect of ditching the blue-slip rule in an interview with conservative radio host Hugh Hewitt.
Blue-slipping a nominee, which dates back to at least 1917, isn’t actually an official rule. It’s more of a courtesy in which the home-state senators are asked to sign off on a judicial nominee on an actual blue slip of paper before the committee holds a nomination hearing.
Senators object to a nominee by failing to return the paper to the Judiciary Committee.
Daniel Goldberg, legal director at the liberal Alliance for Justice, said Republicans blocked 17 Obama nominees, including six nominees to circuit courts, using the blue-slip rule.
“In fact, four of the current circuit vacancies exist only because Republican senators did not return blue slips for Obama nominees, and the Judiciary Committee, consistent with Senate practice, did not hold hearings,” he said.
Lisabeth Tabor Hughes, a judge on the Kentucky Supreme Court, was one of them.
Goldberg said former President Obama nominated her for the very seat on the 6th Circuit Court of Appeals the Senate Judiciary Committee advanced Amul Thapar to fill on Thursday. Amul’s nomination is now headed to the floor for a vote.
Thapar, President Trump’s first lower court pick, also hails from Kentucky, where he is a district court judge. With two Republican Senators – Mitch McConnell and Rand Paul – Thapar was in the clear. A nominee from a state with a Democrat isn’t likely to be as lucky.
“We’ll see how the next one goes,” Cornyn said.
Cotton told Hewitt last week that Republicans should consider changing the tradition if Democrats start blocking Trump’s nominees.
“Let’s be clear it is not a rule, it is not written down in the Senate rules or in the rules of the Senate Republican Conference and the tradition changes substantially based on the preferences or views of the Senate judiciary chairman,” he said.
“I think the blue slip tradition can be helpful if it encourages the White House to consult in advance with senators, but we can’t allow Democratic senators to continue to obstruct this president’s agenda.”
Sen. Ted Cruz (R-Texas) said if Democrats shut down qualified nominees to the courts than there’s a “real possibility they will lose their ability to do so.”
“We saw just a few weeks ago the first partisan filibuster of a Supreme Court nominee in history with Justice Neil Gorsuch,” he said.
That led Republicans to change the Senate’s rules to prevent a filibuster of a Supreme Court nominee.
“What prompted the Senate rule change was the historic resistance and obstruction from the Democrats,” Cruz said.
The full Senate would not have a role if the blue-slip process is changed.
A 2013 report for Congress on the “Role of Home State Senators in the Selection of Lower Federal Court Judges,” said “it should be kept in mind that the blue slip policy is set by the committee’s chair and is not a part of the committee’s written rules” and that the “degree of importance placed on administration consultation with home state Senators, is always subject to change, in keeping with the prerogatives of the committee chair.”
The report also said “the lesser role for Senators, and the more independent role of the President, in the selection of circuit court nominees is well established by custom.”
Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committeee, told The Hill this week there are exceptions to the rule.
“It’s going to continue to be around, but there are exceptions and don’t forget there’s different standards,” he said.
“It’s very much more dispositive in the case of judges at the district court level. At the circuit court level, it’s considered the White House under both Republican and Democrat administrations that tend to have more choice, more leeway, so I suppose that’s where you’d find more exceptions to the blue-slip rule.”
Sen. Al Franken (D-Minn.), however, disagreed.
He claims the process applies equally to both district and circuit court nominees “and Republicans certainly operated that way during the Obama administration.”
“In my view, the blue slip plays an important role in ensuring that the Senate is able to fulfill its constitutional duty to provide ‘advice and consent,’” he said.
“The Committee should continue this custom and not change it simply because there’s a new president in the White House.”
Sen. Dianne Feinstein (D-Calif.), ranking member on the Senate Judiciary Committee, said the blue-slip rule has always applied to circuit court nominees and “there’s no reason to change that longstanding precedent” now.
“During the Obama administration, no nominee received a hearing unless both home state senators had returned their blue slips,” she said.
A Democratic aid said Democrats are “willing to work with the White House to find highly qualified, mutually agreeable, mainstream nominees, but that requires meaningful engagement and consultation on both sides.”
But Cruz warned if Democrats use the blue-slip rule to block Trump nominees, it will lead to a change.
“Whenever you see unprecedented abuse and obstruction like we’re seeing from Senate Democrats, you can expect the majority to act to reign in that abuse,” he said.
But not all GOP members are ready to trash the blue slips just yet.
“Frankly it’s served a very good purpose up to now,” Sen. Orrin Hatch (R-Utah) said.
“I’ll have to listen to the debate and see what I’ll decide, but it has played a very noble, important role over the years.”
In a 2014 op-ed in The Hill, Hatch argued against getting rid of the rule.
“Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power,” he wrote.
“Anyone serious about the Senate’s constitutional ‘advice and consent’ role knows how disastrous such a move would be.
David Carle, a spokesman for Senator Patrick Leahy (D-Vt.), said no judicial nominee – district or circuit court – received a hearing without first receiving both home state senators’ positive blue slips while Leahy was the committee chair.
“They loved the blue-slip rule when it was President Obama and Chuck Grassley to his credit said I enforced it with a Democratic president, he’s going to enforce it with Republican president, so we’ll have the blue-slip rule,” Leahy told The Hill.
Leahy was citing a 2015 op-ed in The Des Moines Register by Grassley.
“I appreciate the value of the blue-slip process and also intend to honor it,” he wrote.
Leahy said he’s going to take Grassley for his word.
“He knew that I enforced it and he said he would enforce it,” he said.