When not to roll over the opposition
The Senate should think twice about eliminating the ‘blue slip’
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.