Don’t give the blue slip the pink slip

The Washington Post - - WASHINGTON FORUM - BY DIANNE FE­IN­STEIN

For 100 years the Sen­ate has al­lowed home-state sen­a­tors to play a cen­tral role in ap­prov­ing nom­i­nees for fed­eral judge­ships in their states. For a ju­di­cial nom­i­na­tion to move for­ward, both sen­a­tors from a nom­i­nee’s state must re­turn a “blue slip” that sig­nals their agree­ment that that nom­i­nee should re­ceive a hear­ing in the Ju­di­ciary Com­mit­tee.

The blue-slip process was put in place to en­sure judges nom­i­nated by the pres­i­dent are main­stream and well-suited to the state in which they would serve — not hand­picked by spe­cial-in­ter­est groups based in Wash­ing­ton.

Repub­li­cans have long been on board with this tra­di­tion. In 2009, the en­tire Re­pub­li­can con­fer­ence wrote to Pres­i­dent Barack Obama, telling him they had to be con­sulted and would use the blue-slip process to block any nom­i­nees from their home states they didn’t ap­prove of.

Both par­ties have de­fended the blue slip to en­sure sen­a­tors play a role in se­lect­ing ju­di­cial nom­i­nees. Up un­til now.

Sen­ate Repub­li­cans are threat­en­ing to elim­i­nate the blue slip, the last re­main­ing tool that en­sures home-state sen­a­tors of both par­ties play a role in the process of ap­point­ing judges.

De­spite us­ing the blue slip to block the nom­i­na­tion of Ken­tucky Supreme Court Jus­tice Lis­a­beth Ta­bor Hughes to the U.S. Court of Ap­peals for the 6th Cir­cuit, Sen­ate Ma­jor­ity Leader Mitch McCon­nell (R-Ky.) is lead­ing the charge.

He has now re­versed the po­si­tion he held dur­ing the Obama ad­min­is­tra­tion, ar­gu­ing that the blue slip should be treated as a “no­ti­fi­ca­tion” of how a se­na­tor in­tends to vote, even though Repub­li­cans used it to block nom­i­nees.

If suc­cess­ful, Repub­li­cans hope to stack the na­tion’s courts with young, ide­o­log­i­cal judges who could rad­i­cally af­fect civil rights, women’s rights, work­ers’ rights and the abil­ity to check the ever-grow­ing power of cor­po­ra­tions over Amer­i­cans.

Re­mov­ing the only tool that pre­vents Pres­i­dent Trump from choos­ing any­one he wants to sit on our fed­eral courts could fur­ther weaken the ju­di­ciary’s abil­ity to serve as an in­de­pen­dent check on the ex­ec­u­tive branch.

It’s im­por­tant to con­sider how we got here. Trump’s abil­ity to re­shape our fed­eral courts was made pos­si­ble by un­prece­dented ob­struc­tion of Obama’s ju­di­cial nom­i­nees, of­ten through the use of the very blue-slip process that Repub­li­cans now want to dis­pense with.

Repub­li­cans al­lowed just 22 ju­di­cial con­fir­ma­tions in the fi­nal two years of the Obama ad­min­is­tra­tion, the fewest since Pres­i­dent Harry S. Tru­man’s ad­min­is­tra­tion.

By con­trast, dur­ing the last two years of the Ge­orge W. Bush ad­min­is­tra­tion, Sen­ate Democrats con­firmed 68 ju­di­cial nom­i­nees, in­clud­ing 10 judges on one day less than two months be­fore the 2008 elec­tion.

As a re­sult of this ob­struc­tion, Trump en­tered of­fice with 88 district court va­can­cies and 17 cir­cuit court va­can­cies.

While it’s true that the nom­i­na­tion process has be­come more par­ti­san, the blue slip main­tains the in­tegrity of the process. Now, fewer than 300 days into the Trump pres­i­dency, Re­pub­li­can sen­a­tors may be will­ing to re­lin­quish the Sen­ate’s re­spon­si­bil­ity to vet nom­i­nees, al­low­ing ide­o­log­i­cal groups to sup­plant the in­put of home-state sen­a­tors.

The Con­gres­sional Re­search Ser­vice found only three ex­am­ples since 1979 of ju­di­cial nom­i­nees be­ing con­firmed with­out blue slips from both home-state sen­a­tors. No cir­cuit or district court nom­i­nee has been con­firmed with­out blue slips from both home-state sen­a­tors in nearly 30 years, re­gard­less of which party con­trolled the Sen­ate or White House.

Dur­ing the Obama ad­min­is­tra­tion, Re­pub­li­can home-state sen­a­tors weren’t shy about us­ing the blue slip to block judges — six cir­cuit court nom­i­nees and 12 district court nom­i­nees never re­ceived hear­ings or votes be­cause they didn’t re­ceive both blue slips. Nonethe­less, Democrats never wa­vered from en­forc­ing the pol­icy, even though it meant Obama nom­i­nees were stymied.

Elim­i­nat­ing the blue slip now would pri­or­i­tize short-term po­lit­i­cal gain while per­ma­nently di­min­ish­ing the Sen­ate as an in­sti­tu­tion and al­low­ing all fu­ture pres­i­dents — Re­pub­li­can or Demo­cratic — to dis­re­gard the in­put of sen­a­tors on judges whose rul­ings would af­fect their con­stituents for decades.

The blue slip en­sures that nom­i­nees are not only qual­i­fied but also cho­sen af­ter con­sul­ta­tion with sen­a­tors. Dur­ing the Obama ad­min­is­tra­tion, the White House of­ten ne­go­ti­ated with Re­pub­li­can sen­a­tors for months, if not years, to find mu­tu­ally ac­cept­able can­di­dates. For ex­am­ple, a 10th Cir­cuit nom­i­nee from Utah was rec­om­mended to the White House by Re­pub­li­can Sens. Or­rin G. Hatch and Mike Lee.

The Trump White House thus far has shown lit­tle in­ter­est in ad­her­ing to norms around se­lect­ing can­di­dates, in­stead choos­ing nom­i­nees for the 7th and 9th cir­cuits with­out wait­ing for home-state sen­a­tors’ bi­par­ti­san se­lec­tion com­mit­tees to com­plete their work.

Just as Trump’s ju­di­cial nom­i­nees will have an ef­fect long af­ter his pres­i­dency, the way the Sen­ate vets ju­di­cial nom­i­nees and whether home-state sen­a­tors con­tinue to have a guar­an­teed seat at the ta­ble will also have a last­ing le­gacy.

Re­pub­li­can sen­a­tors should ask them­selves if they’re will­ing to per­ma­nently cede the Sen­ate’s “ad­vise and con­sent” re­spon­si­bil­ity to the White House. When they’re in the mi­nor­ity — and make no mis­take, all of us even­tu­ally are — will it have been worth it? The writer, a Demo­crat, rep­re­sents Cal­i­for­nia in the U.S. Sen­ate.

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