Bench Memos

Law & the Courts

The Democrats’ Revisionist History-Redux

It’s time to correct the record again about blue slips.

Earlier this week, Senate Judiciary Committee Chairman Chuck Grassley announced that he would be holding a hearing tomorrow morning for Ryan Bounds, President Trump’s nominee to the Ninth Circuit Court of Appeals in Portland, Oregon, and an experienced federal prosecutor.  The President nominated Mr. Bounds on September 7, 2017 (an astonishing 242 days ago).  In response to the announced hearing, Senator Mazie Hirono, a member of the Senate Judiciary Committee, tweeted yesterday, “This has never been done before and should not happen now. These are not normal times.”  Senator Hirono’s tweet couldn’t be more wrong, as it grossly misstates the way the blue slip has been treated historically.

First, the blue slip tradition is exactly that—a tradition.  It is a Senatorial courtesy rather than a Senate rule.  Since its appearance in 1917, Committee chairmen have adopted varying iterations of the blue slip courtesy, but only two prior chairmen in the last 100 years have required that both home state senators return favorable blue slips in order to consider a nominee.

The first of these two aberrations was Democratic Senator James Eastland, a widely-recognized segregationist who, according to Villanova Law Professor Tuan Samahon, “endowed the blue slip with veto power to, among other things, keep Mississippi’s federal bench free of sympathizers with Brown v. Board of Education.” In other words, the single-senator veto approach to the blue slip was developed by a Democrat seeking to perpetuate systemized racism.

In 1979, Senator Ted Kennedy—Eastland’s successor to the chairmanship—disposed of Eastland’s approach and returned to the policy that had been in effect from 1917-1956, which was that “an unreturned or negative blue slip wouldn’t prevent the Committee from conducing a hearing on a nominee.”  This was also the approach adopted by subsequent chairmen, including Senators Thurmond, Biden, and Hatch.  While Senator Leahy reinstated Senator Eastland’s single-veto approach during his tenure as chair, even Senator Leahy said “he wouldn’t stand for senators abusing the blue slip to delay or block nominees.”

As for Senator Grassley, he has been clear and consistent in articulating his approach to the blue slip since assuming the chairmanship.  In a February op-ed in the Washington Examiner, Senator Grassley said: “My policy, which is based on the policies of the vast majority of my predecessors, is that the lack of two positive blue slips will not necessarily preclude a circuit-court nominee from receiving a hearing unless the White House failed to consult with home-state senators.  I am unlikely, however, to hold hearings for district court nominees without two positive blue slips.”  One could fairly call Senator Grassley’s approach “The Biden Approach,” as Grassley’s policy is identical to the one that Senator Biden followed when he was chair from 1987-1995.  Senator Grassley has repeated his policy numerous times in op-eds, statements, and floor speeches since assuming the chairmanship (see examples here and here).

With respect to Mr. Bounds’ nomination, Senators Ron Wyden and Jeff Merkley of Oregon have been nothing but hypocritical and obstructionist.  Immediately following Bounds’ nomination last September, they announced that they would oppose his nomination because Bounds had not been approved by Wyden and Merkley’s bipartisan judicial selection commission.  Then in February, when the very same commission recommended Bounds as one of its four highest-ranking candidates for the Court of Appeals vacancy in Portland, Wyden and Merkley had to find a new purported reason to oppose Bounds.  As my NRO colleague Ed Whelan detailed yesterday, Wyden and Merkley embarked on a smear campaign, disingenuously accusing Bounds of not disclosing materials that he hadn’t been asked to provide in the first place, and attacking him for what blogger David Lat (and a former co-clerk of Bounds) described in a Wall Street Journal op-ed as “pok[ing] fun at the excesses of political correctness.”

Senator Grassley’s decision to hold a hearing for Ryan Bounds this week was measured and appropriate.  It is also consistent with the Senate Judiciary Committee’s historical approach to the blue slip.  This is not a case where the White House failed to consult home state senators about a nominee.  On the contrary, the White House actually nominated a candidate recommended by the senators’ own mechanism for identifying nominees.  Wyden and Merkley’s opposition is based purely on politics and ideology, and I commend Senator Grassley for scheduling a hearing and permitting the Committee to consider Bounds’ nomination.

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