Senate Republicans in their rush to pack the federal courts with judges appointed by President Trump who are conservative and against abortion are trying to end an arcane century old rule which they used repeatedly to deny President Obama’s judicial nominees from being confirmed.
The rule is actually not a rule but a tradition that has long been enforced by the chairman of the Senate Judiciary Committee. It is called the “blue slip” practice because literally a blue slip of paper is sent to Senators from the home state of the judicial nominee for a sign-off. If the Senator doesn’t return the blue slip, that person’s essentially disqualified from further consideration.
It is a way to block the appointment of a judge whose power is second only to a justice on the Supreme Court, and who is appointed for life, which means he or she long outlives the president and administration which appointed them.
The practice was used frequently by Republicans during the Obama years, which is why there is an unusually large number of vacancies on the federal bench, about 143 at present.
That is why, for example, a seat on the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Texas, Mississippi, and Louisiana, has been vacant for over five years.
During the entire eight years of President Obama’s administration, Texas Republican Senators Ted Cruz and John Cornyn would not agree to a single one of his nominees just because they were his nominees.
Now, under pressure to jam in as many conservative judges for life as possible, while Trump is president, Senate Majority Leader Mitch McConnell of Kentucky wants to change the “blue slip” rule so that it is just a way for the home state senator to indicate how they plan to vote, and not a way to block a judicial nominee.
McConnell is scheduled to meet with Democratic Minority Leader Chuck Schumer of New York on the issue. Schumer argues that it would be a mistake to take away this one last way a Senator in the minority party can stop a judicial nomination because while the Republicans are currently in the majority, that could change in the future, and they will find themselves wishing the “blue slip” protocol was still in use.
“Preserving some of the minority’s power in the Senate has broad support because every one of us knows we’re probably going to be in some of each,” Schumer told the New York Times.
It was under Obama that the Democrats, then in the majority, used their power to change the rule which had made it necessary to have 60 votes to even take up a judicial nomination.
Earlier this year the Republicans changed the rules so that it was not necessary to have 60 votes to approve a Supreme Court nominee – in this case, conservative Neil Gorsuch – which meant they could approve their choice with a simple 51 vote majority.
The “blue slip” is the last thing keeping the majority party from acting as the dictators of the moment.
If it stands, Trump nominees in Oregon, Minnesota and elsewhere where there is at least one Democratic Senator are going to be dropped from consideration. That is what has the Republicans up in arms.
So far Trump has won confirmation for three appeals court judges and two district court judges. There are 45 of his nominees waiting for approval – 11 for the appeals court and 34 as district court judges.
One Trump nominee, David R. Stras of Minnesota, has already been blocked from being chosen to sit on the appeals court for the Eighth Circuit.
Democratic Senator Al Franken, who is a member of the Judiciary Committee, refused to return his blue slip because, as he announced, he feared Stras would be in the mold of conservative Justices Clarence Thomas and Antonin Scalia.
Democratic Senators Ron Wyden and Jeff Merkley of Oregon refused to return a blue slip for Ryan Bounds, nominated to be on the 9th Circuit Court of Appeals, not only because of his conservative views, but also because the Republicans were jamming his nomination through without going through a long existing judicial recommendation process which takes took bipartisan views into consideration.
The Oregon Senators explained their view in a letter to the White House counsel, about “Oregon’s long bipartisan tradition of working together to identify the most qualified candidates for judicial vacancies.”
The Oregon Senators said they would consider any candidate, and expedite the process even for a Republican if the process would be used.
“Unfortunately,” wrote the Oregon Senators, “it is now apparent that you never intended to allow our longstanding process to play out.”
“If you are a Republican concerned about nothing but seating heaps of young pro-life judges on the courts before the Trump presidency implodes,” writes Slate, “these old prerogatives no longer matter (just as they didn’t for Garland). All that matters, according to this view, is the win.”
Trump doesn’t actually even pick the judicial candidates. He has farmed that out to two conservative think tanks, including the Heritage Foundation, to ensure all the choices meet the alt-right’s check list on key issues.
If these were not lifetime positions, and if the judges were not vested with such an enormous amount of power, this fight would not be as consequential as it is, but that is the reality. These judges and their influence will far outlive the Trump administration and have the potential to hinder progress and subvert the view of the majority of Americans for the rest of this century.
McConnell and his Republican cohorts have repeatedly shown that they are loyal only to those who support their campaigns financially, and have no problem with subverting the will of the majority, in their efforts to control the government and pass laws that fit with their political agenda.
The Republicans freely used the rule to block Obama nominees but now for Trump they want to change everything. That is the definition of being hypocrites.
The “blue slip” rule, as arcane and old fashioned as they see it, is one of the last ways to ensure that one party cannot rule the country and poison the future no matter who is elected president down the road.
This is a fight the Democrats must win.