Bench Memos

Law & the Courts

Time to Restore the Kennedy-Biden-Hatch Blue-Slip Policy

It’s difficult to see how President Trump could have found a more highly qualified candidate for the Eighth Circuit vacancy in Minnesota than David Stras. A Minnesota supreme court justice since 2010, Stras has earned the respect of his colleagues across ideological lines: among the (at least) eight former justices who support his nomination is Alan Page, the longtime liberal justice—and, before that, Hall of Fame defensive tackle for the Vikings—who served with Stras for five years. Page hails Stras as having “all the attributes and qualifications necessary to make an excellent circuit court judge.” It’s no surprise at all that Stras received the ABA’s highest possible rating: a unanimous “well qualified.”

What ought to be a surprise, given the broad acclaim that Stras has received from those who have worked with him and appeared before him, is that Senator Al Franken (D-Minn.) announced today that he would not only oppose Stras’s nomination but would also decline to return the “blue slip” signaling his go-ahead to the Senate Judiciary Committee to hold a hearing on the nomination. Franken expresses concerns that Stras “would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia.” (If Franken is right, it’s unclear why he would prefer that Stras remain on Minnesota’s highest court, which has the final word on what state law means, rather than move to the Eighth Circuit, where he’d be dealing with federal cases arising in various states and be subject to reversal by the Supreme Court.)

In her own statement, Senator Amy Klobuchar, Franken’s senior home-state colleague and also a Democrat, says that “it is [her] view that [Stras] deserves a hearing before the Senate.” But she effectively defers to Franken’s refusal to return a favorable blue slip, and she says that “the White House will need to provide additional names for the 8th Circuit position.”

If Franken is going to use the negative blue slip to prevent a nominee like Stras from even getting a hearing, I respectfully suggest that it’s time for Senate Judiciary Committee chairman Chuck Grassley to take the step I outlined four months ago: to restore—at least with respect to appellate nominations—what Senator (and former committee chairman) Orrin Hatch called the “Kennedy-Biden-Hatch blue-slip policy.” Under that policy, the chairman would give the return of a negative blue slip on a nomination “substantial weight,” but could still decide to allow a committee hearing and vote on the nomination.

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