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It’s time to save the judicial confirmation process

Greg Nash

In our system of government, the executive and legislative branches share responsibility for selecting the members of the third branch – the federal judiciary. This shared responsibility reflects the Founders’ desire to find a middle ground.

Our Founders didn’t want Congress to be able to grind the gears of government to a halt over political disagreements with the president. But, they also didn’t want the president’s powers to be absolute and unaccountable. Thus, Article II of the Constitution gives the president the job of nominating judges – but only with the “Advice and Consent” of the Senate.

{mosads}This system allows for a federal judiciary insulated from partisan politics so long as the executive and legislative branches engage in the process in good faith. And, while in today’s hyper-partisan political environment, good faith is sometimes hard to come by, until very recently, presidents and Senate leaders of both parties have worked together as intended.

The success of this longstanding process has always relied on two factors – the personal commitment of presidents and senators to preserve that spirit of judicial independence, and a set of procedures designed to promote bipartisan consideration of nominees.

One of those procedures is known as the “blue slip.”

Traditionally, a president consults with home state senators before choosing a nominee to fill a vacancy in their state. Those senators then signal their acceptance of that nominee by returning a blue form to the Judiciary Committee, allowing a hearing for that nominee to be scheduled.

Importantly, this is no mere courtesy, but rather a way to make the nomination process less partisan and more collaborative. In 2013, there was a Utah-based vacancy on the Tenth Circuit Court of Appeals. President Obama could easily have selected a liberal nominee with views similar to his own to fill that seat. Instead, he chose to follow the “blue slip” process, consulting with Utah’s two Republican senators, Orrin Hatch and Mike Lee. They, in turn, could easily have insisted that President Obama choose a right-wing ideologue. But they chose to hold up their end of the bargain, working with President Obama to identify and interview compromise candidates.

In the end, President Obama nominated Judge Carolyn McHugh, who had been appointed to Utah’s Court of Appeals by a Republican governor. No doubt her views were more conservative than either the president’s or those of the Democratic Senate majority, but she was nominated and considered based on her qualifications, not her ideology, and in the end, she was confirmed unanimously.

That’s how it’s supposed to work. And during my 18 years in the Senate – including four years serving as Senate Majority and Minority Leader with a Republican president – I saw Democrats and Republicans alike do their part to uphold this important bipartisan commitment to an independent federal judiciary.

But over the last few years, conservatives have begun to undermine that commitment.

During the Obama administration, Senate Republicans started to drag the judicial confirmation process to a halt, hoping to preserve vacancies for future Republican Presidents to fill. This disturbing trend reached a turning point with the death of Supreme Court Justice Antonin Scalia. President Obama performed his constitutional duty, consulting closely with Republican senators and choosing a moderate nominee, Judge Merrick Garland, whom many of those same Republicans had effusively praised in the past.

Republicans, however, broke faith with the process, refusing to even consider Judge Garland’s nomination so that the seat could remain open until a Republican president could fill it. And, indeed, President Trump nominated Judge Neil Gorsuch and the Republican Senate confirmed him.

Likewise, breaking with decades of precedent, in recent months, the administration has single-handedly nominated Minnesota Supreme Court Justice David Stras to the Eighth U.S. Circuit Court of Appeals and Oregon federal prosecutor Ryan Bounds to the Ninth U.S. Circuit Court of Appeals simply for their commitment to conservative ideology.

Fortunately, home senators are taking a stand. Due the administration’s failure to honor our blue slip tradition by consulting with home state senators on judicial nominations, Sens. Al Franken (D-Minn.), Ron Wyden (D-Ore.), and Jeff Merkley (D-Ore.) declined to return their blue slips for the Stras and Bounds nominations.

While critics are accusing Democrats of escalating the partisan enmity in Washington, I disagree.

The truth is that in the absence of a president committed to upholding the bipartisanship of the judicial confirmation process, the independence of the federal judiciary is at stake. We need more senators with the political courage to stand up and defend our time-honored principles of American government.

Like these senators, I ask that we return to the process our Founders intended – a process whereby the executive and legislative branches work together to nominate the best candidates to uphold the laws of our nation.

Tom Daschle (D-S.D.) is a former United States Senate majority and minority leader and founder and CEO of The Daschle Group, a public policy advisory of Baker Donelson.

Tags Al Franken Jeff Merkley Mike Lee Orrin Hatch Ron Wyden

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