For all the wild talk of Donald Trump’s preferring to work with Democrats instead of his own fractious party, the administration and Senate Democrats are on a collision course that should smash figments of imaginary bipartisanship. Trump has now nominated 50 would-be judges to openings on Circuit Courts of Appeal and district benches, all of whom appear to have been vetted by conservative legal commissars like the Federalist Society and the Heritage Foundation. Most of them will probably be confirmed on strict or near party-line votes in the Judiciary Committee and the full Senate.
But in some cases, Senate Democrats who have been bypassed in the judicial selection process are retaliating via the 100-year-old tradition of the “blue slip” — an arcane practice where the Judiciary Committee won’t move on a non-SCOTUS judicial nomination unless both senators from her or his home state approve, via a literal blue slip of paper. More often than not, the blue slip system operates invisibly, as a way to ensure prior consultation between the administration and senators — especially of the opposing party. But its use for purposes of obstruction is hardly unprecedented, as evidenced by what happened to Barack Obama’s nominees, even during the six years when Democrats controlled the Senate. Dahlia Lithwick notes the hypocrisy of GOP whining about blue slips now that they are being deployed against conservative nominees:
A Democratic Senate during the Obama administration kept the blue-slip process intact, even though it meant that in certain jurisdictions seats remained unfilled for years. To be clear: Not one Obama district or circuit court nominee received a hearing unless both of his or her home-state senators returned blue slips. That meant, for instance, that a seat on the 5th U.S. Circuit Court of Appeals—covering Louisiana, Mississippi, and Texas—has been vacant for more than five years. This is, in fact, one of the reasons Trump has so many empty seats to fill. Texas Sens. Ted Cruz and John Cornyn refused to sign off on any Obama nominees simply because they were Obama nominees.
Current Judiciary Committee chairman Chuck Grassley has in the past been a staunch defender of the blue slip tradition, which he got to see up close on the committee when Democrat Pat Leahy, a blue slip absolutist, was in charge. But he has more recently expressed sympathy for the newfangled conservative argument that blue slips should be limited to district court appointments, on grounds that circuit courts represent multiple states, not some individual state with its own senators.
We’ll probably find out soon enough which way Grassley chooses to go. Minnesota Democrat Al Franken has announced he will not return a blue slip for Eighth Circuit nominee David Stras, a conservative legal luminary who was on Trump’s SCOTUS list, on grounds that there was no meaningful consultation or interest in choosing a consensus judge. And Oregon Democrats Ron Wyden and Jeff Merkley have told the White House they won’t return a blue slip for Ninth Circuit nominee Ryan Bounds because the administration bypassed a long-established bipartisan commission process for selecting Oregon-based federal judges.
You can expect a lot of conservative pressure on Grassley to junk blue slips, at least for circuit judge candidates. The ideological reshaping of the federal judiciary is the tie that most firmly binds conventional conservatives to the Trump presidency, and so far it’s an area where the 45th president has done nothing to let the right down. The fragility of the Trump presidency, as reflected in his terrible approval ratings, is all the more reason for Republicans to move as quickly and as ruthlessly as possible in getting some good ideologues into the courts.