Bench Memos

Law & the Courts

Senator Feinstein Was against the Blue Slip before She Was for It

Sen. Dianne Feinstein speaks to reporters on Capitol Hill, Washington, D.C., October 4, 2018. (Yuri Gripas/Reuters)

Dianne Feinstein, the Senate Judiciary Committee’s ranking member, has taken the lead in advancing Senate Democrats’ blanket obstruction of judicial nominees. Today, during the second committee business meeting in as many weeks, she decried the confirmation of judges over the objection of their home-state senators, in this case Ninth Circuit nominees Daniel Collins and Kenneth Lee. Her position: the blue slip should serve as a home-state senator’s veto over judicial nominations, including to circuit courts of appeals.

Democrats have repeatedly peddled a revisionist history that inaccurately casts the blue slip as a veto. I have already explained why they are wrong here and here—why the blue slip, a tradition of senatorial courtesy and not a rule, was designed to encourage pre-nomination consultation. Over the century since that tradition appeared in 1917, only two chairmen, Senators James Eastland and Patrick Leahy, treated the courtesy as a veto. Eastland, a segregationist Democrat from Mississippi, did so to block nominees sympathetic to civil rights. Leahy, for his part, expressed during his own tenure that he would not tolerate the abuse of the blue slip to delay or block nominees.

Another Democratic Judiciary Chairman, Joe Biden, wrote the first President Bush in 1989 articulating a standard closer to the historical norm: “The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation a judicial nominee, but it will not preclude consideration of that nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate.”

Feinstein cannot credibly claim the administration failed to consult her on the Ninth Circuit. The incoming White House Counsel met with her three days before President Trump was inaugurated to discuss Ninth Circuit and California district court vacancies. In July 2017, the White House provided her a list of five prospects for the Ninth Circuit, including Collins and Lee, and offered to nominate whomever she preferred from that list.

For nearly a year, they followed with numerous requests for feedback on the list and received none. Then Feinstein insisted in a June 2018 meeting with the White House Counsel that the president draw his nominations from an entirely different slate of prospects taken from her in-state judicial selection commission. She did not offer significant feedback on the actual Trump list. She now opposes Collins and Lee without ever having met with them during the nomination process. This, of course, is just one sorry chapter in the broader narrative of the Democrats’ wholesale obstruction of judicial nominees.

What makes Feinstein’s disingenuousness on blue slips so pronounced, however, is that it marks a 180-degree turn against the position she once took. On June 29, 2001, Feinstein took to the floor of the Senate to declare, “I have come to believe the blue slip should hold no place in this body.” She asserted,

As a member of the Judiciary Committee, I believe our duty is either to confirm or reject a nominee based on an informed judgment that he or she is either fit or not fit to serve; to listen to concerns and responses, to examine the evidence presented at a hearing, and to have a rationale for determining whether or not an individual nominee should serve as a district court judge or circuit court judge or even a U.S. Supreme Court Justice.

California’s senior senator expressed sympathy for nominees whose lives are put on hold by the process, sometimes for years, and explained,

In my view, the rationale behind the blue slip process is faulty. The process was designed to allow home state Senators—who may in some instances know the nominee better than the rest of the Senate—to have a larger say in whether the nominee moves forward. More often than not, however, this power is and will be used to stop nominees for political or other reasons having nothing to do with qualifications.

As a matter of fact, the Member who uses the blue slip, who doesn’t send it in, or sends it in negatively, may never have even met the nominee.

Kind of like what Feinstein is trying to do now on the Collins and Lee nominations. She continued,

If legitimate reasons to defeat a nominee do exist, those reasons can be shared with the Judiciary Committee in confidence, and decisions can be made based on that information—by the entire Committee.

The blue slip process as it now stands is open to abuse.

I would join with those . . . on the Judiciary Committee who would move to abolish the blue slip.

Before closing, the future ranking member of the Judiciary Committee read the following quote from a Washington Post op-ed by G. Calvin Mackenzie, an expert on presidential appointments:

The nomination system is a national disgrace. It encourages bullies and emboldens demagogues, silences the voices of responsibility, and nourishes the lowest forms of partisan combat. It uses innocent citizens as pawns in politicians’ petty games and stains the reputations of good people. It routinely violates fundamental democratic principles, undermines the quality and consistency of public management, and breaches simple decency.

Feinstein asserted, “I find myself in agreement with every word in that quote. It is quite an indictment of our nominations process.”

Question: What would the Feinstein of 2001 have to say about the Feinstein of 2019?

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