House Democrats in Florida, like their Texas colleagues, are trying to invade the blue-slip turf of their state’s two Republican senators. Senator Rick Scott has forcefully rebuffed their efforts. Let’s hope that Senator Marco Rubio promptly does so as well.
Some background: The blue-slip privilege is the vehicle by which the Senate Judiciary Committee chairman enables home-state senators to weigh in on judicial nominations (as well as U.S. Attorney and U.S. Marshals in their states). The weight of the blue slip has varied over time.
In late 2017, Senate Judiciary Committee chairman Chuck Grassley demoted the blue slip for appellate nominations. No longer would home-state senators be able to veto an appellate nominee on ideological grounds. Instead, the blue-slip privilege would operate only to ensure that the White House had adequately consulted with home-state senators about the nomination. As Grassley put it, he was “restoring the traditional policy and practice of the vast majority of my predecessors over the past 100 years.”
At the same time, Grassley left the blue-slip policy in full force for district-court nominees. The effective veto it gives to home-state senators of the opposite party explains why Donald Trump never made nominations to longstanding vacancies in states like Massachusetts, New Jersey, and Washington (see this list of judicial vacancies at the end of 2020) and why he re-nominated and appointed various of President Obama’s judicial nominees and struck deals with Senate Democrats on many others.
New Senate Judiciary Committee chairman Dick Durbin has committed to follow Grassley’s differential approach to circuit and district nominees.
As Senator Scott states in his letter, he has “recently learned that Democrat members of the Florida delegation in the United States House of Representatives have attempted to insert themselves in the nomination process for federal judicial and executive branch vacancies in Florida.” As I understand it, Congresswoman Debbie Wasserman Schultz, former chair of the Democratic National Committee, is the moving force behind this effort. Wasserman Schultz is trying to form a judicial commission that would vet judicial candidates, and she is trying to enlist some Republican lawyers to join her effort.
If Wasserman Schultz’s commission were to operate, its foreseeable—and surely intended—effect would be to put political pressure on Scott and Rubio to give their blue-slip approval to the candidates the commission recommends. No Republican lawyers in Florida should assist Wasserman Schultz: they would be outnumbered, and they would just end up undercutting their senators and ensuring that far-left nominees could claim “bipartisan” support.
During the Trump presidency, Democratic senators in blue states, like Chuck Schumer and Kirsten Gillibrand in New York and Dianne Feinstein and Kamala Harris in California, never allowed House Republicans to set up such a commission. (At the request of Oregon’s Democratic senators, Republican congressman Greg Walden was part of their judicial-selection commission.)