GOP eying 'blue slip' break to help Trump fill the courts
© Getty

Momentum is building in the Senate for doing away with an arcane rule that allows senators to block some of President Trump’s judicial nominees.

The “blue-slip” rule — a precedent upheld by Senate tradition — allows a home-state senator to stop a lower-court nominee by refusing to return a sheet of paper, known as a blue slip, to the Judiciary Committee.

Conservatives have clamored for months to get rid of the rule, arguing Democrats are abusing the process to block qualified nominees.

ADVERTISEMENT

They recently gained a powerful ally: Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOn The Money: Biden, Senate GOP take step toward infrastructure deal as other plans hit speed bumps Senate GOP to give Biden infrastructure counteroffer next week Masks shed at White House; McConnell: 'Free at last' MORE (R-Ky.), at least when it comes to picks for the U.S. courts of appeals. 

"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 The New York Times.

He added that he supports keeping the blue slip rule for district court judges, whose decisions can get appealed to the circuit court.

With Trump and congressional Republicans struggling to rack up major legislative wins — they have, so far, failed to repeal ObamaCare and tax reform is months behind schedule — the courts offer perhaps the best path for the GOP to make lasting change in the majority. 

Trump currently has 144 vacancies to fill in the federal court system, with nominees already named for 45 of those spots. The vacancies include 21 on the circuit court, which span multiple states and ranks only below the Supreme Court. 

Because the Senate's "blue slip" practice isn't a rule but a tradition enforced by the Judiciary Committee chairman, the decision on whether or not to move forward ultimately rests with Sen. Chuck Grassley (R-Iowa.).  But Democrats are prepared to test the issue. 

ADVERTISEMENT

Democratic Sens. Ron WydenRonald (Ron) Lee WydenGOP governors move to cut unemployment benefits as debate rages over effects Senate Finance Committee to consider clean energy legislation this month Hillicon Valley: Global cybersecurity leaders say they feel unprepared for attack | Senate Commerce Committee advances Biden's FTC nominee Lina Khan | Senate panel approves bill that would invest billions in tech MORE (Ore.) and Jeff MerkleyJeff MerkleySweeping election reform bill faces Senate buzz saw Senate panel deadlocks in vote on sweeping elections bill Senate descends into hours-long fight over elections bill MORE (Ore.) are pledging they will not return their slips for Ryan Bounds, Trump’s ninth circuit pick, or “any other nominee that has not been selected through our judicial process.” 

“As senators charged with the task for advice and consent in the selection of candidates, we take our responsibility to identify and recommend candidates to fill Oregon judicial vacancies very seriously,” they wrote in a letter to the White House.

Sen. Al FrankenAlan (Al) Stuart FrankenMaher chides Democrats: We 'suck the fun out of everything' Why Caitlyn Jenner should not be dismissed #MeWho? The hypocritical silence of Kamala Harris MORE (D-Minn.) is also refusing to return his blue slip for David Stras, Trump’s eighth circuit nominee.

In addition to Stras and Bounds, Democratic Sens. Tammy BaldwinTammy Suzanne BaldwinSenate Democrats offer bill to scrap tax break for investment managers Senate Democrats push Biden over raising refugee cap House Dems to unveil drug pricing measure ahead of Biden package MORE (Wis.), Bob CaseyRobert (Bob) Patrick CaseyA historic moment to truly honor mothers Democrats face big headaches on Biden's T spending plan The Hill's Morning Report - Presented by Facebook - GOP makes infrastructure play; Senate passes Asian hate crimes bill MORE (Pa.) and Michael BennetMichael Farrand BennetOvernight Defense: Former Pentagon chief to testify about Capitol riot Wednesday | Senate Intelligence chairman wants Biden to review US Space Command move Senate Intelligence chairman wants Biden to review US Space Command move Manchin on collision course with Warren, Sanders MORE (Colo.) have a Trump judicial pick from their home states awaiting a hearing before the Judiciary Committee. 

And roughly seven additional circuit court seats that Trump still needs to fill come from states that have at least one Democratic senator, including Minority Leader Charles SchumerChuck SchumerBiden 'encouraged' by meeting with congressional leaders on infrastructure Republicans welcome the chance to work with Democrats on a bipartisan infrastructure bill Cheney sideshow distracts from important battle over Democrats' partisan voting bill MORE (D-N.Y.).

Democrats have few other tools to slow down or block a judicial nominee. They did away with the 60-vote filibuster for lower-court nominees when they held the majority in 2013, and Republicans followed suit by ending the filibuster for Supreme Court nominees earlier this year.

A coalition of liberal groups is putting pressure on Democratic senators to oppose any judicial nominee from Trump, who they call “a white supremacist who has no respect for the Constitution and the rule of law.”

“Even though they do not have the numbers to block Trump’s nominees, keeping Trump from being able to fill even a portion of the total vacancies could limit the damage he inflicts on our courts. Senior members of the Judiciary Committee like Sens. Feinstein, Leahy and Klobuchar must commit to total resistance,” CREDO Action wrote in a petition call to its supporters.

Sen. Dianne FeinsteinDianne Emiel FeinsteinIf you want Julie Su at the DOL, don't point to her resume Senate Democrats push Biden over raising refugee cap Lawmakers react to guilty verdict in Chauvin murder trial: 'Our work is far from done' MORE (D-Calif.) — who has stirred the left’s ire ahead of a potential 2018 reelection bid — is urging Republicans to keep the blue slip tradition.

“It’s the prerogative of home-state senators to evaluate potential federal judicial nominees and determine whether or not they are mainstream and well-suited to hold these important positions of public trust, which have real-world consequences for their constituents,” Feinstein, the ranking member of the Judiciary Committee, said in a recent statement.

Noting that nominees under President Obama didn’t move forward when they didn’t receive blue slips from their home state senators, Feinstein added, “I trust that this refusal to sign a blue slip will be treated the same way.”

Schumer and McConnell are expected to sit down and discuss the issue, though a Senate aide noted on Friday that the meeting hadn’t been scheduled yet.

It’s not the first time the Senate has fought over the blue-slip tradition, which dates back 100 years.

Every GOP senator, including McConnell and Grassley, sent a letter to Obama in 2009 warning that if they weren’t consulted, and didn’t approve of, nominees from their home states they wouldn't let them move forward.

“Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not,” the entire caucus wrote in the letter.

Christopher Kang, a former deputy counsel for Obama, noted in a Huffington Post op-ed that Republicans blocked 18 Obama nominees by refusing to return a blue slip, including six circuit court picks.

Grassley has, so far, not said what he will do when a home-state senator opposes a nomination. But he’s hinted that the blue-slip rule could go by the wayside, at least in same cases.

“It’s much more a White House decision on circuit judges than the district court judges,” Grassley said during an interview on C-SPAN’s “Newsmakers” program. “I mean, this is going to be an individual case-by-case decision, but it leads me to say that there’s going to have to be a less strict use or obligation to the blue-slip policy for circuit, because that’s the way it’s been.”

ADVERTISEMENT

A Congressional Research Service report noted that, “since 1979, the impact of negative blue slips has varied as leadership in the Senate Committee on the Judiciary has changed.”

If Grassley ultimately does decide to move forward on the nominations being objected to by Democrats, he’ll have the support of other top GOP senators and conservatives to give him cover.

“We’ve never really had an absolute blue-slip process on circuit court judges, so if the Democrats are trying to do that, that’s wrong,” said Sen. Orrin HatchOrrin Grant HatchFinancial market transactions should not be taxed or restricted Bottom line The Republicans' deep dive into nativism MORE (R-Utah), a former Judiciary Committee chairman.

But Hatch, as a member of the minority in 2014, also touted his protection of the “blue-slip tradition,” noting that, “not one appeals court nominee was confirmed without the support of their home-state senators.”

Sen. John CornynJohn CornynGOP split on counteroffer to Biden's spending Police reform talks hit familiar stumbling block CNN asks Carol Baskin to comment on loose Texas tiger MORE (R-Texas), the No. 2 Senate Republican, added “there’s consultation, which is important, but we’re not going to let an individual senator reverse the outcome of the last presidential election.” 

Any changes Republicans make to the Senate’s traditions or rules while they are in the majority could come back to bite them when they are back in the minority.

Cornyn, asked if he was worried about the potential implications down the road, acknowledged it was a reality Republicans could face.   

“Well the Democrats have shown they are willing to go to extreme measures anyways,” he said, “so I wouldn’t be surprised.”