When not to roll over the op­po­si­tion

The Se­nate should think twice about elim­i­nat­ing the ‘blue slip’

The Washington Times Daily - - COMMENTARY -

When Sen. Harry Reid det­o­nated the “nu­clear op­tion,” elim­i­nat­ing fil­i­busters against nom­i­na­tions of fed­eral district and ap­pel­late court judges, he was con­fi­dent that Democrats would re­tain their Se­nate ma­jor­ity in 2014 and hold the White House in 2016, for as long as the wind blows and the rivers run to the sea.

But it didn’t hap­pen that way, as he learned to his pique and sor­row. Mr. Reid, who was then the leader of a Demo­cratic ma­jor­ity in the Se­nate, was bet­ting there would never be a Repub­li­can ad­van­tage again. The Ne­vada Demo­crat, then the ma­jor­ity leader, bet that the nu­clear op­tion wouldn’t come back to bite Democrats be­cause the Democrats would al­ways be the only game in town. He learned that noth­ing is per­ma­nent, and in pol­i­tics not even very long-last­ing.

Repub­li­cans should take the les­son to heart. Cer­tain Repub­li­can se­na­tors want to elim­i­nate the cham­ber’s “blue-slip” prac­tice that gives mi­nor­ity-party se­na­tors an in­for­mal veto over cer­tain ju­di­cial nom­i­na­tions for their home states.

The temp­ta­tion is un­der­stand­able be­cause the Demo­cratic se­na­tors, in their de­ter­mi­na­tion to de­stroy Don­ald Trump, have been in­tran­si­gent in op­po­si­tion to the pres­i­dent’s ju­di­cial nom­i­nees. Not a sin­gle Demo­crat — not even the self-styled “mod­er­ates” — voted late last month to con­firm U.S. District Court Judge Amul Tha­pur’s nom­i­na­tion to the 6th U.S. Cir­cuit Court of Ap­peals in Cincin­nati. Judge Tha­pur was unan­i­mously re­garded as well-qual­i­fied, and would have been the first ap­peals court judge of In­dian or South Asian an­ces­try. As a U.S. district judge in Ken­tucky he had demon­strated a de­vo­tion to the Con­sti­tu­tion. But Demo­cratic se­na­tors must show de­vo­tion to the in­sur­rec­tion, mounted to re­verse in ev­ery way pos­si­ble the con­se­quences of the 2016 elec­tions.

This is what tempts them to scrap the tra­di­tion of the blue slip, which de­crees that a ju­di­cial nom­i­na­tion can­not pro­ceed un­less the nom­i­nee’s home­s­tate se­na­tors con­cur. A sen­a­tor ve­toes a nom­i­nee by re­turn­ing a blue slip to the Ju­di­ciary Com­mit­tee, sig­nal­ing ob­jec­tion.

The tra­di­tion cur­rently ap­plies only to 18 states where both se­na­tors are Democrats, most of them on the At­lantic and Pa­cific coasts and in the up­per Midwest. Re­sist­ing Pres­i­dent Obama’s stack­ing of the fed­eral ju­di­ciary with lib­eral and left-wing ac­tivists is a de­sir­able goal, and elim­i­nat­ing the blue-slip would make it con­sid­er­ably eas­ier to get Mr. Trump’s judges con­firmed in those states.

The Democrats abided by the blue-slip tra­di­tion dur­ing the Obama years, en­abling Repub­li­cans to kill some of Mr. Obama’s more ex­treme lib­eral nom­i­nees. Sen. Charles E. Grass­ley of Iowa, on be­com­ing the chair­man of the Se­nate Ju­di­ciary Com­mit­tee in April 2015, wrote in op-ed es­say in the Des Moines Regis­ter that “I ap­pre­ci­ate the value of the blue-slip process and also in­tend to honor it.”

Sev­eral con­ser­va­tive groups have urged Mr. Grass­ley and Se­nate Ma­jor­ity Leader Mitch McCon­nell, Ken­tucky Repub­li­can, to elim­i­nate the blue slips at least for nom­i­na­tions to ap­pel­late courts that serve more one state. They ar­gue, with a cer­tain per­sua­sive­ness, that there’s no com­pelling rea­son why, for ex­am­ple, Sens. Tim Kaine and Mark Warner, Vir­ginia Democrats, should have veto power over Mr. Trump’s nom­i­nees to the 4th Cir­cuit Court of Ap­peals, which sits in Rich­mond. The 4th Cir­cuit en­com­passes not only Vir­ginia and Mary­land, whose two se­na­tors are both Democrats, but also North and South Carolina, both of whose se­na­tors are Repub­li­cans, and West Vir­ginia, which has a sen­a­tor from each party.

It’s a more dif­fi­cult call in ap­pel­late cir­cuits, where the states’ se­na­tors are all from the same party, such as the 2nd Cir­cuit, which com­prises Con­necti­cut, New York and Ver­mont. For the sake of what lit­tle bi­par­ti­san comity re­mains in the Se­nate, it might be well to re­tain the blue-slip prerog­a­tive in such cir­cuits.

As sure as the wind blows, Democrats will one day re­claim con­trol of both the pres­i­dency and the Se­nate, and when that hap­pens the blue slips will look at­trac­tive to Repub­li­cans, af­ter all. The wheel that goes around comes around.

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