The Blue-Slip Privilege and Seventh Circuit Nominee Victoria Nourse

by Ed Whelan

Some 50 or so law professors (including some conservatives) recently signed a letter to the Senate Judiciary Committee complaining about new Republican senator Ron Johnson’s non-return of a “blue slip” on President Obama’s nomination of Wisconsin law professor Victoria Nourse to a seat on the Seventh Circuit. In my judgment, the letter is very unfair to Senator Johnson, as it fails to acknowledge that his exercise of his blue-slip prerogative is well within the bounds of Senate practice.

As I’ve made clear, I’m no fan of the Senate’s blue-slip policy, the internal Senate procedure that gives senators in a particular state special power to obstruct executive-branch and judicial nominations in their state. I’m especially not an admirer of the expanded version of the blue-slip policy that Democrats extracted from then-chairman Specter in the Bush 41 years—which gave individual senators an effective veto even over federal appellate judgeships associated with their states (even though the laws do not assign appellate judgeships by state and the caseload of an appellate judge has no more connection to one state than to any other in a circuit). As I explained at the end of the Bush 41 presidency, “This Senate Republican conferral of extraordinary leverage on obstructionist Democrats explains, for example, why a Fourth Circuit seat regarded as belonging to Maryland has been vacant throughout Bush’s presidency—and why so many other seats were filled with compromise candidates.”

That said, there is nothing remarkable about Senator Johnson’s non-return of a blue slip on Nourse.

Obama first nominated Nourse in July 2010, but the Senate Judiciary Committee did not hold a hearing on her nomination last year. (The law professors’ letter asserts that no hearing was held “because the Judiciary Committee stopped any hearings prior to the mid-term elections,” but in fact hearings on appellate nominations took place on September 15, 2010, and September 29, 2010, and it is not at all clear that Nourse faced any timing obstacle.) The Senate returned pending judicial nominations, including Nourse’s, to Obama at the end of last year. Obama then proceeded to renominate Nourse on January 5, 2011—the same date that Senator Johnson, who defeated Russ Feingold’s bid for re-election, was sworn into office.

I am reliably informed that the White House did not consult at all with Senator Johnson before renominating Nourse. Further, Johnson has plausibly complained about Nourse’s lack of ties to the legal community in Wisconsin: Nourse was not even a member of the state bar when she was first nominated. (She became a member in December 2010.) These are well-accepted and conventional grounds for declining to return a favorable blue slip.

As I understand it, Johnson has not invoked the apparent ideological gulf between himself and Nourse (or between his understanding of the role of the courts and hers) as a further reason for not returning a blue slip. But he would be well within his rights to do so, as many of the senators who declined to return positive blue slips on—and thereby blocked confirmation of—ten of President George W. Bush’s federal appellate nominees and twelve of his federal district nominees can amply attest.

I’ll also note that the law professors’ letter never openly acknowledges that Nourse’s initial nomination was returned and that that she had to be renominated during Johnson’s tenure. It instead resorts to a series of odd locutions to obscure this fact: e.g., it asserts that Johnson’s non-return of the blue slip came “months after the nomination was complete”; that he “retroactively assert[ed] this [blue-slip] privilege”; and that new senators “typically … have no power to countermand completed presidential nominations.”

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