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McConnell Could Play Hardball On Judicial Nominees

Senate Majority Leader Mitch McConnell speaks on the Senate floor in July 2017. (YouTube screenshot/PBS NewsHour)Senate Majority Leader Mitch McConnell speaks on the Senate floor in July 2017. (YouTube screenshot/PBS NewsHour)

Senate Democrats may soon lose the last procedural mechanism by which they could block President Donald Trump’s judicial nominees for federal appeals courts.

Senate Majority Leader Mitch McConnell told The New York Times Thursday that he is prepared to do away with blue slips, an informal but enduring Senate convention by which senators representing states where judicial vacancies occur are given some deference as to whether nominees for that seat will proceed.

By Senate convention, senators submit an opinion or a “blue slip” giving a positive or negative evaluation of a nominee named to a vacancy in their state. As a general matter, the Senate Judiciary Committee will not convene a hearing for a nominee until the relevant senators submit their blue slips, effectively giving home-state senators veto power over judicial nominations.

McConnell argues that the blue slip protocol is more appropriate for federal district courts than appeals or “circuit” courts. The jurisdiction of any given district court is confined to a single state, giving that state’s senators a heightened interest in the selection of judges. The jurisdiction of circuit courts, on the other hand, encompasses multiple states, diluting the importance of a given senator’s views.

“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” McConnell told TheNYT.

According to the Judicial Conference of the United States, there are currently 144 vacancies in the federal courts. As such, Senate Republicans have an unprecedented opportunity to attach their ideological imprimatur to the judiciary. However, doing away with blue slips is not without risks. Senate Republicans successfully leveraged them against a slate of former President Barack Obama’s nominees, and ending the practice now will circumscribe their power when the GOP inevitably returns to minority status in the chamber.

“Getting rid of the blue slip would be a mistake,” Senate Minority Leader Chuck Schumer told TheNYT. “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.”

The blue slip protocol is enforced by the chairman of the Judiciary Committee, currently Sen. Chuck Grassley of Iowa. Grassley has been circumspect on the subject as late. Though he signaled agreement with McConnell’s position in May, he has not yet scheduled hearings for those nominees blocked by Democrats.

Democrats are currently withholding blue slips for two of the president’s nominees. Sen. Al Franken of Minnesota declined to return a blue slip for state Supreme Court Justice David Stras, a nominee to the 8th U.S. Circuit Court of Appeals, and Oregon Sens. Ron Wyden and Jeff Merkley will not return blue slips for Ryan Bounds, a U.S. attorney tapped for the 9th U.S. Circuit Court of Appeals.

These lawmakers say the administration did not consult with them prior to naming nominees to courts in their states, though a White House official disputed this allegation to BuzzFeed News.

Some conservative legal commentators have agitated for the abolition of the blue slip in recent weeks. Law professor and radio personality Hugh Hewitt wrote in an April column that blue slips are a “deeply anti-democratic” practice.

“The U.S. Senate is a wonderful institution,” he wrote. “Over the centuries, however, it has developed some deeply anti-democratic and anti-republican practices, chief among them this ‘rule of one’ when it comes to judicial nominations.”

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Kevin Daley
the authorKevin Daley
Kevin J. Daley is the Daily Caller News Foundation's Supreme Court reporter. Follow him on Twitter @KevinDaleyDC.

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