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The End of the Blue Slip

| 21 Comments
Majority Leader Mitch McConnell has taken a lot of heat from conservatives for moving too slowly and ineptly on the Trump agenda, and for being a stodgy, Establishment figure.

I always thought this criticism unfair and to an extent uninformed.  The Senate is simply not designed for speed.  The criticism has also overlooked McConnell's crucial role in the confirmation of Justice Gorsuch, a key to preserving a balanced and perhaps  --  at some point  --  a conservative-tilting Supreme Court.

As of four hours ago, Fred Barnes in the Weekly Standard reported that McConnell is ending the "blue slip."  The blue slip is a sometime-Senate tradition (not a rule) under which the home state senator for a judicial nominee can prevent even a hearing before the Judiciary Committee.  It is currently holding up such nominees as AUSA Ryan Bounds of Oregon and state supreme court Justice David Stras of Minnesota. I have not heard any serious argument that these candidates are anything less than fully qualified; the hold-ups are difficult to see as something other than partisan obstruction.

If the Barnes report is true, it's a huge step forward in re-casting the federal judiciary.  According to the official site for United States Courts, there are currently 149 vacancies.

Congratulations to Leader McConnell and Chairman Chuck Grassley (who surely approved this move) for ending an anachronism of Senatorial privilege in favor of majority rule.

21 Comments

Decencyevolves: During the Obama’s Administration, GOP Senators blocked 18 judicial nominees through the use of blue slips. How is this anything but rank hypocrisy?

Not unexpectedly, you and the NYT agree with one another, with one exception -- the NYT more-or-less admits ITS OWN hypocrisy, and that removing the blue slip, is, on the merits, the right thing to do:

"This abuse of blue slips led many, including this page, to call for an end to the practice, but Mr. Leahy continued it — as did Senator Charles Grassley of Iowa, who became chairman of the Judiciary Committee after Republicans won the Senate in 2014....

"The push toward ever-more extreme judges will only further politicize the third branch. Still, the blue slip is no longer the answer. As we argued in 2014, senators who oppose a nominee can state their objections on the Senate floor and try to persuade their colleagues..."

Here is the NYT editorial from which these quotations are taken, dated a little less than four weeks ago: https://www.nytimes.com/2017/09/15/opinion/senate-blue-slips-republicans.html

That's cute.

Let's all pretend that blue slip abuse began when Obama took office.

This is fantastic news. No single senator should wield such power.

And for the Obama defender who uses mere numbers to justify his immoral equivalency argument, there are almost a dozen unfilled appellate vacancies arising from states with at least one Democratic senator. So, there.

Just so you know, there are almost a dozen unfilled appellate vacancies arising from states with at least one Democratic senator.

I have long suspected that the influence of home state Senators on federal judicial appointments produces a perverse effect on the review of state criminal judgments on federal habeas corpus. The greatest scrutiny is applied in the states where it is least needed. California could do without such review altogether, but judges appointed by President Carter under the influence of the notorious Senator Alan Cranston have long found excuses to overturn valid judgments. As Judge Reinhardt is reported to have said, the Supreme Court can't reverse them all.

“Senate Majority Leader Mitch McConnell (R-KY) was confronted at a dinner party … and slammed for the party’s legislative struggles.”

“The influential Judicial Crisis Network had planned on launching a $250,000 ad buy in Washington on Tuesday calling on McConnell .. McConnell's aides contacted the conservative advocacy group .. to defuse …”

“Separately, the Conservative Action Project, a coalition spanning from former Sen. Jim DeMint (R-S.C.) to President Ronald Reagan’s AG Edwin Meese, is urging McConnell to stop allowing the chamber to bolt for the weekend on
Thursday afternoons …”

____----____----____

Is not McConnell merely agreeing to do-his-job in a reluctant, long-overdue, rear-guard action?

Thank you very little, now do much better.

If my expectations are unrealistically high,
so are those of about 65 million Americans.

~~Randy Adamakis, VFW Post 15033 Life Member.

https://shareblue.com/im-sick-and-tired-of-nothing-happening-
millionaire-gop-donors-rattled-by-partys-failures/;
http://www.politico.com/story/2017/10/09/senate-judicial-confirmations-ad-buy-conservatives-243606

Decency: Check out the history of the judicial wars. Look specifically at Stephen Breyer--a Carter appointee to the Ninth (before he joined the Supreme Court)--he was confirmed after Reagan's election. Then the 'rats started stiffing Reagan judges, then Bush 41 judges. The GOP repaid Clinton, but not as badly as the Dems did to Bush 41, and that doesn't take into consideration the truly offensive Clinton nominees--e.g., Frederica Massiah-Jackson, Richard Paez and other rotten judges. The the 'rats upped the ante against Bush 43 (even after Bush appointed Roger Gregory and Barrington Parker). Obama stooped to trying to filibuster and Reid did away with the filibuster.

So decency, the Dems started this war, upped the ante at every turn, and now whine.

Mitch McConnell makes Pat Leahy look like an antiquated old fool for resurrecting Blue Slips after Orrin Hatch killed them during the Bush Administration based on quaint notions of Senatorial courtesy. Rest assured that that is dead and buried and won't be resurrected a second time, just as no party in control of the Senate is likely to confirm the Supreme Court Justices nominated by the President of another party in the future.

We live in an age where rules change dramatically with every election, as today's New York Times editorial on changing mores in Presidential etiquette make clear:

https://www.nytimes.com/interactive/2017/10/08/opinion/editorials/republican-etiquette-guide.html?emc=eta1

Of course, my earlier comment was about rank hypocrisy and no one denies the charge because you can’t. This, from the New York Times editorial Kent links to, makes the point quite well:

“Back in 2009, Mr. McConnell and the entire Republican Senate caucus — then in the minority — implored President Barack Obama to honor all blue slips. The appointment of federal judges is a ‘shared constitutional responsibility,’ the Republicans said, warning Mr. Obama that ‘if we are not consulted on, and approve of, a nominee from our states,’ the senators intended to prevent that nominee from getting a hearing. They expected the blue-slip policy ‘to be observed, even-handedly and regardless of party affiliation.’

Lucky for them, it was. Senator Patrick Leahy, the veteran Vermont Democrat and chairman of the Judiciary Committee at the time, applied the policy without exception, meaning that a single withheld blue slip would torpedo a judicial nomination.

Republican senators exploited their blue slips with abandon, and with little or no explanation. One senator blocked a nominee because she had once said the Constitution did not protect an individual right to bear arms — an accurate description of the uncertainty about the law at the time. Other senators blocked nominees they had previously approved for other courts, or even recommended to the White House themselves. In all, 18 of Mr. Obama’s judicial nominees were scuttled, including six to the Courts of Appeals. That’s not counting dozens more vacancies that languished for years without a nominee because senators made it clear they would object to anyone.

This abuse of blue slips led many, including this page, to call for an end to the practice, but Mr. Leahy continued it — as did Senator Charles Grassley of Iowa, who became chairman of the Judiciary Committee after Republicans won the Senate in 2014. President Trump now has 144 vacancies to fill on the federal bench, many as a direct result of Republican intransigence during the Obama era. So it’s particularly rich, if not surprising, for Republicans to urge its demise.”

The history of the judicial wars is that the Dems started it; generally escalated, and, it seems now, have lost.

The Dems' responsibility can hardly be disclaimed.

On the merits, should the blue slip policy be ended?

That's a yes or no.

You are free to explain the yes or no as you wish, but first we need a straight up or down.

I will add that the poison got into this well when it was dumped twice. The first time was the rancid campaign against a former Marine, DC Circuit Judge and brilliant Yale Law Professor Robert Bork, whose trash was searched by The Guardians of Privacy (searched to no effect, I might add). The targeting of Bork was led by allies of that paragon of (as Obama would say), "who we are," to wit, Teddy Kennedy. This was after Kennedy's most significant legal experience had consisted of getting booted out of law school for cheating, then leaving a gorgeous young lady not his wife to drown in a car he drunkenly drove off a bridge after a bachelor party night of tanking it down and you-know-what-else.

Hypocrisy is bad. Drowning is worse, no?

The second dumping of poison was done to Miguel Estrada, a brilliant and sought-after lawyer who was publicly toyed with for years because an Hispacnic conservative was more than the Left wanted prominently shown to the public in a judgeship, so he got dumped in the sewer despite having unarguable qualifications.

Still, I'm glad the Left isn't into disadvantaging anyone on account of race or anything like that.

I agree with both points made by The NY Times Editorial:

1. That Mitch McConnell’s announcement is a piece of rank hypocrisy, and

2, That Leahy and perhaps Grassley now

http://www.cnn.com/2017/10/11/politics/blue-slip-judicial-nominees-grassley/index.html

Are hanging on to antiquated positions regarding blue slips that reflects a time that has long since passed. Resurrecting the policy after Orrin Hatch axed it made little sense.

When it looked like Hillary Clinton was going to win, John McCain, Ted Cruz and Richard Burr announced their intention to block any of her Supreme Court nominees. We are in a situation where the Supreme Court consists of little more than ideological power politics.

It’s hard to conceive of an organization that is more responsible for the politicization of the federal judiciary than the Federalist Society, an organization with which you and Kent have very strong ties.

This has raised the stakes of political elections to such a degree that

This has raised the political stakes of Presidential elections to such a degree that politicians and others who know better can support and vote for Presidents as dangerous as our current Commander-in-Chief, who Senator Corker (and according to him many other more fearful GOP Senators) rightly believe is dangerously unstable.

-- Having now agreed that ending the blue slip policy is correct on the merits, you have advanced the discussion in the way that is most valuable for purposes of this blog. Thank you.

-- The reason that, however petulantly, you and the NYT agree the blue slip ought to be ended was succinctly explained by Steve Erickson, above: "No single senator should wield such power."

Senatorial courtesy is one thing, and to an extent, desirable. Giving one senator out of a hundred a chancellor's foot veto is nuts.

-- Chairman Grassley, being a gentleman, is, as you suggest, likely to continue to give Committee members a degree of latitude up to a point. But make no mistake about it, the veto is over with. If the networks say otherwise, fine, have at it. They can add that tidbit to yesterday's report that the President plans a tenfold increase in the number of nuclear weapons, which is also false. (You might do best not to believe everything you see on CNN and the NYT).

-- You observe, "It’s hard to conceive of an organization that is more responsible for the politicization of the federal judiciary than the Federalist Society, an organization with which you and Kent have very strong ties."

The Federalist Society has never, as an organization, taken positions on either legislation or nominations. It consists of conservative and libertarian lawyers and law students who often -- quite true -- tend to support like-minded people for appointment to the judiciary. But that is an individual choice.

There is a huge diversity of opinion with the Society. Its libertarian members strongly disagree with more traditional conservatives like me, and we often and earnestly debate each other, in private and in public. This is not exactly news.

Kent is a member and past chairman of the FedSoc's Criminal Law Practice Group, correct. I am also a member.

And, I'll not only plead guilty to your charge, but EXTREMELY GUILTY. I have contributed a considerable amount to the FedSoc and will do so again next month. Worse than that, I am married to FedSoc co-founder Lee Liberman Otis. Lee was a star student for Prof. Scalia at Chicago and a clerk to Justice Scalia at both the DC Circuit and the Supreme Court. We both worked in White House Counsel's Office for Pres. George H. W. Bush. She is now a FedSoc Vice President and Director, and, with me, is on the adjunct faculty of Georgetown University Law Center, which I am happy to report actually supports diversity of thought, which is the one and only reason I get tolerated there.

***************************

See how easy it is to confess one's guilt! Your clients might even try it some time!!!

decency: you don't address my point. Try it.

“As an organization” is an interesting dodge, given the fact the outsized role that Leonard Leo has played in the selection of the federal judiciary under Trump and played a similar role under George W. Bush.

http://www.businessinsider.com/leonard-leo-could-be-most-powerful-recruiter-in-the-world-2017-4

As a practitioner in federal court who has litigated on behalf of indigent clients in civil and habeas cases since 1987, my perception is this: those Circuit and Supreme Court judges most heavily identified with the Federalist Society tend to be the most hostile to the cases brought on behalf of my clients and others in similar positions. The difference between O’Connor, Stewart and Powell and Gorsuch, Alito and Scalia is vast and radical.

The notion that it’s worth suffering through the perilous times we are currently undergoing, with a President who is ignorant, vindictive, destructive and hostile, simply to ensure a more conservative judiciary strikes me as dangerously irresponsible.

Federalist—six Republican Senators voted against Robert Bork because they viewed him as too ideologically extreme. He got a fair, five day hearing before Senators who ddecided they didn’t want Powell replaced by him and lost the seat by a majority vote. His former student, Linda Greenhouse, summed up my view of it pretty well:

“[W]hat ‘borking, really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection. In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed ‘original intention’ of the framers, was not what the country needed or wanted.”

https://opinionator.blogs.nytimes.com/2013/01/09/robert-borks-tragedy/

1. It's all true. Members of the Federalist Society, Leonard included, are free under the First Amendment to give advice about judicial selection when asked. I'll concede that this is another reason your liberal friends are eager to cut back on the First Amendment -- or, failing that, to just take matters into your own hands by shutting down and/or intimidating conservatives.

How's that antifa working out for you guys?

2. "As a practitioner in federal court who has litigated on behalf of indigent clients in civil and habeas cases since 1987, my perception is this: those Circuit and Supreme Court judges most heavily identified with the Federalist Society tend to be the most hostile to the cases brought on behalf of my clients and others in similar positions. The difference between O’Connor, Stewart and Powell and Gorsuch, Alito and Scalia is vast and radical."

Therefor Gorsuch, Alito and Scalia were/are not qualified to be Justices???

Far out!

There was a time when result orientation was thought not to be a respectable position in evaluating the fitness of Justices, but apparently that has slipped into the past.

If, however, we are now to have result orientation as the standard, there are those of us who would prefer results that do not favor the interests of thugs, smack pushers, rapists and the other wonderful folks on your client list.

3. "The notion that it’s worth suffering through the perilous times we are currently undergoing, with a President who is ignorant, vindictive, destructive and hostile, simply to ensure a more conservative judiciary strikes me as dangerously irresponsible."

Egging on assassination is sober discussion, however (see, e.g., the severed head stunt).

And while we're at it -- weren't you just putting Scalia on your "dangerously irresponsible" list? A man acknowledged by all but dead-end partisans to have been one on the greatest legal minds ever?

4. "Federalist—six Republican Senators voted against Robert Bork because they viewed him as too ideologically extreme. He got a fair, five day hearing before Senators who decided they didn’t want Powell replaced by him and lost the seat by a majority vote."

Bork, along with Scalia the Prof. Richard Epstein, is one of the three most brilliant legal thinkers I ever met. If Bork was not qualified for the Supreme Court, no one is.

And just to be clear: You make it plain that you want an ideological test for Justices -- but only as long as the ideology is yours. Then you complain when, so you assert, the other side adopts the standard you relish.

5. Back to the original subject: When Al Franken makes a clown of himself attacking a man like Justice Stras, you have invited -- indeed, you have begged for -- ending the blue slip. And now, whether gently (Grassley) or less gently (McConnell) that is what you're going to get.

But Franken's extremist antics get not a mention from you, as you go on instead about how "we've" lost a tradition of bi-partisanship and comity.

Right!!!!!!!!!!!!!!!

It's hard to know where to start:

As for Robert Bork, this retrospective gets a lot of it pretty right:

"He opposed the Supreme Court's one man, one vote decision on legislative apportionment.

He wrote an article opposing the 1964 civil rights law that required hotels, restaurants and other businesses to serve people of all races.

He opposed a 1965 Supreme Court decision that struck down a state law banning contraceptives for married couples. There is no right to privacy in the Constitution, Bork said.

And he opposed Supreme Court decisions on gender equality, too . . . . Known as a charming and witty man in private, Bork was dour and humorless in public, and his answers seemed to play into the stereotype liberals were painting of a man who cared little for the public. When Republican Sen. Alan Simpson of Wyoming pitched a softball to Bork, asking him why he wanted to serve on the Supreme Court, the nominee replied that "it would be an intellectual feast."

TV critic Tom Shales of The Washington Post would write of the testimony: 'He looked and talked like a man who would throw the book at you — and maybe the whole country.' In the end, Bork was defeated by a vote of 58 to 42, the largest margin in history."

http://www.npr.org/sections/itsallpolitics/2012/12/19/167645600/robert-borks-supreme-court-nomination-changed-everything-maybe-forever

And yes, as he article notes, the Bork nomination and defeat set off a series of battles that have never ended

Certainly Leonard Leo and private citizens generally have a right to advise whoever they choose. My only point is that the federal courts have become a fiercely ideological place and that people associated with the Federalist Svoiety have played an outside role in that, but then the courts reflect our larger society, so I suppose that's to be expected.

My original point--quite a small one really--was about the hypocrisy of Mitch McConnell, who is happy to beg that Senate customs be preserved when it suits him and junk them when it doesn't.

As for the President, recognizing the uniquely disturbing nature of this moment and what is going on isn't tantamount to a call for political violence. Jack Goldsmith, former General Counsel to the Department of Defense under George W. Bush. isn't calling for assassination when he writes "Donald Trump is testing the institution of the presidency unlike any of his 43 predecessors. We have never had a president so ill-informed about the nature of his office, so openly mendacious, so self-destructive, or so brazen in his abusive attacks on the courts, the press, Congress (including members of his own party), and even senior officials within his own administration."

https://www.google.com/amp/s/www.theatlantic.com/amp/article/537921/

He isn't wrong either. If you are still proud and happy about your vote for him in last year's election, you shouldn't be.



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