Judicial vacancy sparks rancor
Use of blue-slip veto debated for seat on 7th Circuit Court
WASHINGTON - When President Barack Obama tried in vain for years to fill a key Wisconsin seat on the federal judiciary, his biggest obstacle was a Senate tradition known as the “blue slip.”
It awards individual senators — including those in the minority party — an effective veto over the nomination of federal judges from their home states.
In Wisconsin, that gave Republican Sen. Ron Johnson huge leverage during the Obama presidency over the state’s most important federal judgeship — an unfilled seat on the 7th Circuit Court of Appeals in Chicago.
When Johnson clashed with Democrats over the prize seat, the result was a stalemate over the nation’s oldest vacancy (seven years and counting) on
the federal appeals court.
Now, Republicans are in power and they’re poised to install a judge of their own liking in the long-vacant seat.
They are also threatening to deprive Democrats of the same power individual Republicans used with great effect when they were in the Senate minority to block homestate judicial nominees.
“I think we will more than likely revert to a tradition where it’s not an absolute veto power,” Johnson said in an interview, predicting his party would change the “blue slip” rule to prevent Democrats from exercising a home-state veto over President Donald Trump’s picks for the appellate court.
Johnson defended such a move, even though he himself benefited greatly from the blue slip while he was in the minority.
Johnson argued that “circumstances have changed,” and that there’s nothing sacrosanct about the policy because the meaning of the Senate blue slip has varied over the decades.
Johnson isn’t the only Republican making those arguments. Some conservative activists are lobbying GOP leaders to end the blue slip veto, calling it undemocratic and viewing it as a hindrance to Trump’s ability to leave his imprint on the federal courts.
Whatever the merits of the practice, experts note that abandoning the blue slip is utterly at odds with how the GOP viewed it when it helped the party stymie many of Obama’s nominees.
The Republicans “really played hardball” in their use of the blue slip when they were in the minority, said Russell Wheeler, a Brookings Institution fellow and expert on judicial nominations. Because it prevented Obama from filling certain seats, it has given Trump many more judgeships to fill with his own selections.
“Now all of the sudden things look different” to them when Republicans are in power, Wheeler said.
Wisconsin is a key example of why the future of the blue slip matters so much for the U.S. appeals courts, which are the most important federal judgeships after the Supreme Court.
That’s because the fight over the 7th Circuit seat remains the subject of deep partisan rancor.
Johnson and Senate Democrat Tammy Baldwin sparred over how to fill the Wisconsin seat when Obama was president, accusing each other of abusing the process.
And now they are sparring over how to fill it under Trump.
Trump this month nominated Milwaukee attorney Michael Brennan, an ally of GOP Gov. Scott Walker, for the 7th Circuit.
Johnson hailed the pick while Baldwin assailed it.
If Baldwin decides to withhold her blue slip of approval on Brennan, she could in theory block his confirmation, just as Johnson blocked Obama’s first pick for the same seat, Victoria Nourse.
But if Republicans decide to end the veto power of home-state senators over appellate nominations, Baldwin’s opposition won’t matter.
Wisconsin also provides one other tool that gives senators in the “out” party a say in judicial picks, but its future role is also in question.
That’s the bipartisan nominating commission that senators in the state have long used to screen judicial applicants.
It has worked well for lower-court picks and U.S. attorneys but has bogged down in controversy over the high-profile 7th Circuit vacancy.
After Johnson was elected to his first term, he negotiated a change in the commission to give a senator in the “out” party the same number of appointments (three) to the nominating commission as a senator in the president’s party. (In fact, it was the power of the blue slip that gave Johnson the leverage to demand that change).
A high bar for advancing was also set: any finalist would need the support of five of six commission members, ensuring broad bipartisan support.
No one met that bar when the commission took up the 7th Circuit vacancy earlier this year. Brennan got the most votes, but only mustered four.
With Johnson’s support, Trump nominated Brennan, anyway.
Baldwin cried foul, saying, “President Trump has decided to go it alone and turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges.”
A White House spokesman responded last week, saying, “The Trump administration did not go it alone. To the contrary, the administration consulted extensively with Senators Johnson and Baldwin on whom to nominate for this seat (which has been vacant for many years) and interviewed every person recommended by both Senators.”
Johnson conceded that Brennan fell short of the required five votes but noted he was the only applicant that got any degree of bipartisan support.
“What’s this administration to do?” Johnson said.
Johnson also blamed Brennan’s failure to win more than one “Democratic” vote on the commission on partisanship by Baldwin’s nominees to the commission.
Baldwin aide John Kraus called the Brennan pick a “purely partisan move and no amount of White House counsel spin can change that fact.” Kraus suggested Trump could have instead picked Donald Schott, who got the requisite five votes when he applied for the seat in 2014. Obama eventually nominated Schott, but the GOP Senate refused to give him a vote in 2016, during the final year of the Obama presidency.
In the end, Brennan’s confirmation — and an end to the marathon saga of the 7th Circuit vacancy — will depend on two things. One is whether Baldwin withholds her blue slip of support, signaling her desire to block his nomination. The other is whether Republicans decide to dilute the power of the blue slip now that they’re in power.
In the interview, Johnson downplayed the blue slip tradition, saying it hasn’t been consistently applied over the decades.
But in recent administrations, no federal appeals court nominee has been confirmed over the objections of a home-state senator.
And the home-state veto was strictly honored over the entirety of the Obama presidency, even during the first six years when Democrats controlled the Senate and it wasn’t in the party’s short-term interest to do so.
Johnson also argued that the blue slip isn’t really meaningful anymore since Democrats ended the filibuster (the 60-vote threshold) for most judicial nominees in 2013. He said that makes the blue-slip veto harder to enforce.
But two experts interviewed for this story said the opposite is true — that the blue slip is more significant than before.
“That’s backwards,” said University of Richmond law professor Carl Tobias, who said the home-state veto is more meaningful now because the minority party has lost the ability to filibuster those judicial picks.
“I don’t understand that argument. This would be the last vestige that protects the minority,” Tobias said.