Why Democratic Senators Won’t Succeed in Attempt to Block Judicial Nominee


Why Democratic Senators Won’t Succeed in Attempt to Block Judicial Nominee

Oct 24, 2018 2 min read
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas Jipping is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies.
Sens. Patty Murray, D-Wash., right, and Maria Cantwell, D-Wash., left, oppose the nomination of Eric Cantwell to the 9th Circuit Court of Appeals. Douglas Graham/CQ Roll Call/Newscom

Even with just two months lefts in this Congress, the Senate Judiciary Committee is still holding hearings for judicial nominations.

A hearing Wednesday will include Eric Miller, nominated to the U.S. Court of Appeals for the 9th Circuit, even though his home-state senators, Democrats Patty Murray and Maria Cantwell of Washington, oppose him.

Murray and Cantwell are trying to prevent the committee from even considering his nomination. But, thanks to Judiciary Chairman Chuck Grassley, R-Iowa, this gambit will fail.

Whenever the president makes a judicial nomination, the Judiciary Committee chairman asks the home-state senators whether they support or oppose the nominee. This practice has come to be called the “blue slip” process because those home-state senators communicate their position on a blue slip of paper.

Since the practice began in 1916, 17 of the 19 Judiciary Committee chairmen have treated the views of home-state senators as input for senators to consider rather than a veto of the nomination. Only two chairmen have treated negative or withheld blue slips as a veto that automatically prevents a hearing.

Grassley follows the traditional blue slip practice. So long as the White House has consulted with home-state senators prior to the nomination, a negative or withheld blue slip will be treated as input but not a veto. In other words, individual senators, on or off the committee, can attribute whatever significance they choose to the views of home-state senators, but the confirmation process will move forward with or without their support.

Murray and Cantwell oppose Miller’s nomination to the 9th Circuit and refuse to return their blue slips. Grassley wrote them on Oct. 18, detailing nearly four pages of meetings, emails, telephone calls, and other efforts by the White House and Judiciary Committee over more than a year to work with Murray and Cantwell to find an acceptable nominee.

In all that time, Grassley wrote, the senators “have not expressed any substantive reasons” for opposing Miller.

This is exactly how this portion of the Senate confirmation process is supposed to work.

For decades since the blue slip courtesy began, home-state senators asked only that they be allowed to express their views to the Judiciary Committee. Some actually testified in hearings.

Especially since the early 1990s, led by Chairmen Joe Biden, D-Del., and Orrin Hatch, R-Utah, the specific purpose of the blue slip courtesy has been to encourage White House consultation. Grassley’s letter shows that his insistence on genuine, good-faith White House consultation is paying off because he now has a legitimate, credible basis for moving forward with a hearing for Miller.

Senate Rule 22 requires 60 votes to invoke cloture, or end debate. This supermajority allows 41 senators to prevent passage of legislation or confirmation of nominations by preventing a final vote altogether. In 2013, Senate Democrats used a parliamentary maneuver to reinterpret Rule 22 so that ending debate on nominations now requires only a simple majority.

The same Democrats who deprived 41 senators of the ability to block confirmation by preventing a full Senate vote are today demanding that a single senator be able to block confirmation by preventing a Judiciary Committee hearing.

Thankfully, Grassley’s respect for the committee’s real traditions and the integrity of the Senate’s role in the appointment process is preventing any senator from undermining the confirmation process by weaponizing the blue slip courtesy.

This piece originally appeared in The Daily Signal