Senate Judiciary Chair Chuck Grassley (R-IA) announced Thursday how he will approach blue slips — a procedure that in the theory encourages the White House to collaborate with the Senate on choosing judicial nominees.
In a prepared version of remarks Grassley will make on the floor Thursday, he laid out how his approach fits in with how past leaders of the committee viewed blue slips, even as it was a shift from the approach of his predecessor, Sen. Patrick Leahy (D-VT).
Nonetheless, Democrats are being deprived a tool that Republicans used with abandon to block judicial nominees under President Obama, often for the same reasons that Grassley said he will not tolerate for President Trump’s nominees.
The blue slip is a slip of paper the two senators from the home state of a judicial nominee each turn in ahead of his or her confirmation hearing. Under Leahy and under Grassley during the Obama administration, the nominees would not move forward to a hearing until their home state senators’ blue slips were returned. Eighteen Obama nominees were stalled because Republicans withheld their blue slips, in some cases for nominees that that the home state Republicans had previously recommended.
Many of the vacancies Trump can now fill is due to this pattern of obstruction.
The issue is now coming to a head because Sen. Al Franken (D-MI) has withheld a blue slip for Judge David Stras, nominee to the 8th U.S. Circuit Court of Appeals.
Grassley said Thursday he will not “allow senators to prevent a Committee hearing for political or ideological reasons.”
He added that if a White House did not “adequately” consult with a senator about a nominee that would be a “be a legitimate reason for withholding a blue slip.”
In Franken’s case, Grassley said that he reviewed the “the records of consultation” and found that the White House had “reached out to” Franken “several times” between January and May about the nomination, and ultimately considered the two alternatives to Stras whom Franken put forward in May.
“I am satisfied that the White House adequately tried to consult with both home-state senators. Therefore, I will not deny Justice Stras a hearing,” Grassley said.
Grassley also announced Thursday he would be moving forward with a hearing for Fifth Circuit nominee Kyle Duncan, for whom Republican Sen. John Kennedy (LA) did not return a positive blue slip but also did not oppose granting a hearing to.
“This is the correct distinction a senator should make when deciding whether to return a blue slip,” he said. “The blue slip is not meant to signify the senator’s ultimate support or opposition to the nominee. It only expresses the senator’s view about whether the nominee should get a hearing.”
He added that he was still more likely to respect withheld blue slips for district court nominees, as opposed to nominees for an appeals court.
Sen. Dianne Feinstein (D-CA), the top Democrat on the Judiciary Committee, said the decision “couldn’t be more troubling.”
“There’s only one reason to eliminate the blue slip, and that’s to allow President Trump to completely cut Democrats out of the process of selecting judicial nominees and continue the pattern of selecting nominees far outside the mainstream,” she said.