Bench Memos

Republican Senators’ Letter to President Obama

A letter to President Obama signed by all Senate Republicans proposes two steps that Obama should take to make the judicial-appointments process less acrimonious and more bipartisan.  (The letter is available on the Judicial Confirmation Network’s website, along with a statement by JCN counsel (and Bench Memos contributor) Wendy Long praising the Republican senators’ “show of strength and resolve on the matter of judges”.)

 

The first proposed step is for Obama to renominate to the federal appellate courts one or more of the Bush nominees who were stalled in the last Congress.  Noting that “there are plenty of well-qualified nominees with bipartisan support from whom to choose”, the Republican senators’ letter gives as its lead example D.C. Circuit nominee Peter Keisler.  As the letter points out, such bipartisan renominations would follow the lead of President George W. Bush, who renominated Clinton recess appointee Roger Gregory (to the Fourth Circuit) and elevated Clinton appointee Barrington Parker (to the Second Circuit).

 

The second step that Republican senators propose is for Obama to consult closely with home-state senators on nominees in their states.  What is most noteworthy here is how Republican senators are responding to Senate Judiciary Committee chairman Patrick Leahy’s reported threat to trample their “blue slip” privilege—the means by which they exercise real clout over home-state nominees.  The letter makes clear that all Republican senators expect the committee’s blue-slip policy “to be observed, even-handedly and regardless of party affiliation” and that Republican senators will act “as a Conference” to “preserve this principle and the rights of our colleagues if it is not”.  In other words, Republican senators 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’ll highlight here that I’ve criticized the Senate’s blue-slip policy (most extensively in this essay), especially as it applies to appellate judges (whose workload bears no particular connection to their supposed home state), and if I were making the rules, the blue-slip practice would be quite limited.  But what Leahy seeks—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 the worst possible approach, and it’s very encouraging that all Republican senators are standing together to make sure that won’t happen.

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