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A follow-up to my posts here and here on the recent New York Times house editorial that wildly distorts the letter that Senate Republicans sent to President Obama last week urging consultation on judicial nominees:  In addition to Jonathan’s excellent Volokh Conspiracy post, I’d like to focus attention again on the editorial’s false assertion that “Republicans abandoned [blue slips] when they controlled the Senate under Mr. Bush.” 

At the outset, I’ll repeat that I’ve criticized the Senate’s blue-slip policy (most extensively in this Weekly Standard essay), especially as it applies to appellate judges (whose workload bears no particular connection to their supposed home state), and that if I were making the rules, the blue-slip practice would be quite limited.  I’ll also add that because the blue-slip policy has never been reduced to writing, its contours over time are particularly subject to dispute.

That said, let’s look at the blue-slip practice when Republicans controlled the Senate from 2003 through 2006.  Let’s begin with Senator Hatch’s tenure as Judiciary Committee chairman for 2003 and 2004.  Hatch stated clearly in 2003 that he would abide by the same blue-slip policy that Teddy Kennedy and Joe Biden had adopted when they each chaired the committee. Under what Hatch labeled the “Kennedy-Biden-Hatch blue-slip policy,” the return of a negative blue slip on a nomination would be given “substantial weight,” but would not necessarily prevent a committee hearing and vote on the nomination. Applying that policy, Hatch (so I am reliably informed) ensured that the Bush White House engaged in extensive consultation with home-state senators.  Over conservative opposition, he even declined to afford a hearing to Fourth Circuit nominee Terry Boyle, whom then-senator John Edwards refused to okay.

On a handful of nominees (two sets of occasions, really) that I’m aware of, Hatch did ultimately proceed to hearings in the face of negative blue slips.  An examination of the details of those is instructive.

In November 2001 President Bush nominated David W. McKeague, Susan Bieke Neilson, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit, and in May 2003 he nominated Richard A. Griffin to another such Sixth Circuit seat.  Despite extensive consultation, the Michigan senators refused to return positive blue slips on these nominees because Bush had failed to renominate Clinton nominee Helene White—Senator Levin’s cousin-in-law—to one of the seats.*  (I think that a couple district court nominees may also have been blocked on the same ground.)  In July 2003—a full 20 months after Saad’s nomination and six months into Hatch’s chairmanship—Hatch held a hearing on Saad.  After the hearing, Hatch waited almost a full year (until June 2004) for the committee to vote on Saad as Hatch worked to accommodate Levin’s interest in nepotism. 

The hearings on McKeague, Griffin, and Neilson finally occurred, respectively, in May, June, and September of 2004—30 months after McKeague’s nomination, one year after Griffin’s, and 34 months after Neilson’s.  Again, in the interim, Hatch was working with the Michigan senators to find some way to move forward.

When the nominations of Saad, McKeague, and Griffin reached the floor, Democrats filibustered them.  In the wake of the Gang of 14 deal, Griffin and McKeague were finally confirmed in June 2005—3-1/2 years after they were nominated.  Neilson was finally confirmed in October 2005—nearly four years after her nomination.  (She died in January 2006, before serving three full months.)

The other nomination on which Hatch ultimately proceeded to a hearing was that of Carolyn B. Kuhl to a supposed California seat on the Ninth Circuit.  President Bush nominated Kuhl in June 2001.  Hatch held a hearing in April 2003—22 months after her nomination—after committee member Dianne Feinstein submitted a positive blue slip (reserving her judgment on the nomination until after the hearing) and notwithstanding a negative blue slip from Senator Boxer.  Democrats filibustered Kuhl’s nomination, and she was never confirmed.

As for Senator Specter’s tenure as chairman from 2005 to 2006:  Democrats successfully extracted from Specter a dramatic expansion of the blue-slip policy that gave them a power that no members of a Senate minority had previously been afforded:  an effective veto over judicial nominations in their states by an opposite-party president.  (As I explained in my Weekly Standard essay, I don’t think that expansion made any sense.)

So Hatch’s application of the Kennedy-Biden-Hatch blue-slip policy and Specter’s expansion of that policy refute the Times’s assertion that “Republicans abandoned [blue slips] when they controlled the Senate under Mr. Bush.” 

One correction/clarification:  I have said previously that “Republican senators, through their letter, are making clear that they will insist on, and use their collective power to demand, the same blue-slip practice that Senate Democrats exercised during the Bush years.”  I believe that that statement is entirely accurate for six of the eight Bush years, but I now see that it doesn’t recognize the modest exceptions in practice during the Hatch chairmanship.

 

I repeat again that I would be happy to see the blue-slip practice eliminated or curtailed prospectively on a bipartisan basis.  But what committee chairman Patrick Leahy is seeking—a system in which Democrats have enormous blue-slip power against nominees of a Republican president but Republicans have little or none against nominees of a Democratic president—is not defensible, and Republican senators are right to stand together to make sure that won’t happen.

 

* In a previous post, I responded briefly to a blogger’s mention of the Saad hearing.  A reader has reminded me of the related negative blue slips on the McKeague, Griffin, and Neilson nominations.


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