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

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They recently gained a powerful ally: Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Hill's 12:30 Report — Presented by UANI — House Dems charge Trump with abuse, obstruction of Congress in impeachment articles Senate must take up Voting Rights Advancement Act without delay Krystal Ball: Is this how Bernie Sanders will break the establishment? 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. 

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Democratic Sens. Ron WydenRonald (Ron) Lee WydenHouse GOP unveils alternative drug pricing measure ahead of Pelosi vote Pelosi gets standing ovation at Kennedy Center Honors Overnight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills MORE (Ore.) and Jeff MerkleyJeffrey (Jeff) Alan MerkleyMcConnell says he's 'honored' to be WholeFoods Magazine's 2019 'Person of the Year' Overnight Energy: Protesters plan Black Friday climate strike | 'Father of EPA' dies | Democrats push EPA to abandon methane rollback Warren bill would revoke Medals of Honor for Wounded Knee massacre 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 FrankenThe job no GOP senator wants: 'I'd rather have a root canal' Take Trump literally and seriously in Minnesota Ninth woman accuses Al Franken of inappropriate contact 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 BaldwinIt's time for Congress to establish a national mental health crisis number The Hill's Morning Report - Presented by Better Medicare Alliance - Dems unveil impeachment measure; Vindman splits GOP The Hill's Morning Report - Presented by Better Medicare Alliance - Dems shift strategy on impeachment vote MORE (Wis.), Bob CaseyRobert (Bob) Patrick CaseyThe US needs to lead again on disability rights No one wins with pro-abortion litmus test New ObamaCare enrollment period faces Trump headwinds MORE (Pa.) and Michael BennetMichael Farrand BennetSanders urges impeachment trial 'quickly' in the Senate Obstacles remain for deal on surprise medical bills Key House and Senate health leaders reach deal to stop surprise medical bills 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 SchumerCharles (Chuck) Ellis SchumerKrystal Ball: Is this how Bernie Sanders will break the establishment? TikTok chief cancels Capitol Hill meetings, inflaming tensions Overnight Health Care — Presented by That's Medicaid — Deal on surprise medical bills faces obstacles | House GOP unveils rival drug pricing measure ahead of Pelosi vote | Justices to hear case over billions in ObamaCare payments 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 FeinsteinHouston police chief excoriates McConnell, Cornyn and Cruz on gun violence Life after Yucca Mountain: The time has come to reset US nuclear waste policy Giffords, Demand Justice to pressure GOP senators to reject Trump judicial pick 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.”

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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 HatchKey Republicans say Biden can break Washington gridlock Trump awards Medal of Freedom to racing industry icon Roger Penske Trump holds more Medal of Freedom ceremonies than predecessors but awards fewer medals 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 CornynLighthizer starts GOP charm offensive on Trump trade deal Houston police chief excoriates McConnell, Cornyn and Cruz on gun violence GOP senators worry Trump made 'problematic' concessions in trade deal 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.”