Bench Memos

Law & the Courts

The Democrats’ Revisionist History Regarding Blue Slips

During the Senate Judiciary Committee’s markup last Thursday, numerous Democratic senators — including Dianne Feinstein and former Committee chairman, Senator Patrick Leahy — bemoaned the Committee’s vote to advance to the Senate floor Michael Brennan, President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit, accusing Chairman Chuck Grassley of abandoning the Senate’s blue slip tradition. That same day, Senator Feinstein tweeted, “Fact-Check: No Democratic chair of the Judiciary Committee has EVER held a hearing for a judicial nominee over the objection of a Republican senator.”

The idea that Chairman Grassley’s blue-slip policy is anything unusual is completely ahistorical, and even the Washington Post’s Fact Checker gave Senator Feinstein’s misleading tweet “Two Pinochios.” In an op-ed in yesterday’s Washington Examiner, Senator Grassley clarifies that in the 100-year history of the blue slip, only two prior chairmen required that both home-state senators return positive blue slips in order to hold a hearing for a nominee. And of these two chairmen, one of these, Senator James Eastland, was believed to have adopted a strict blue-slip policy because of his widely known segregationist beliefs. All other chairmen have followed some version of the original blue-slip policy, which is that a negative or unreturned blue slip will not automatically prevent a nominee from receiving a hearing.

In his op-ed, Chairman Grassley states his approach to the blue slip: “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.” Senator Grassley’s policy is nothing new; he has repeated his policy numerous times throughout the preceding months in op-eds, statements, and floor speeches (see his November 13, 2017, floor speech and November 15, 2018, op-ed in The Hill for examples).

As Senator Grassley explains, the Democratic minority is re-writing this history of the blue-slip policy because of the position it now finds itself in as a result of voting to eliminate the filibuster in 2013. He writes that Democrats “now argue that one senator should singlehandedly be able to stall the process before the nominees are even considered by the committee.” To this, Senator Grassley declares, “I will not allow the blue slip courtesy to be abused in this way. The blue slip is meant to encourage pre-nomination consultation, not to vest a senator with the power to block a nominee for political or ideological reasons. Whether a nominee is suitable for the federal bench is a decision for the entire Senate.”

As I tweeted last week, Senator Grassley deserves credit for standing up to this revisionist history and proceeding with hearings for highly qualified nominees, including David Stras and Michael Brennan, when the White House has consulted with home state senators — as was the practice of virtually all of the Senate Judiciary Committee chairmen who preceded him.

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