By Charles Grassley
I was surprised to learn from a recent Washington Examiner article that last week I ?ignored? the Senate?s longstanding blue slip courtesy. This article echoes inaccurate Democratic talking points and ignores the history of the blue-slip tradition.
I have stated consistently that I am maintaining the blue-slip courtesy as chairman of the Senate Judiciary Committee. Since 1917, whenever a president has selected a judicial nominee to fill a court vacancy, the chairman of the Senate Judiciary Committee has issued blue slips of paper to each senator representing the state where the vacancy occurred. The historical purpose of the blue slip has been to gather insights about judicial nominees from home-state senators and encourage the White House to consult with them before choosing a nominee.
The blue slip was not intended to give a single senator the power to veto the president?s nominees for political or ideological reasons. But in 1956, Sen. James Eastland, D-Miss., became chairman of the Judiciary Committee and decided to change tradition. He imposed a strict policy requiring both home-state senators to return positive blue slips before he would schedule a hearing for a nominee. Some scholars have maintained that Eastland, an unapologetic segregationist, adopted this policy to prevent judges sympathetic to school desegregation from sitting on the federal bench in the South.
Sen. Ted Kennedy, D-Mass., succeeded Eastland as chairman in 1979 and reverted to the original blue slip policy. Under Kennedy, a negative or unreturned blue slip would not necessarily prevent the nominee from receiving a hearing before the committee. Sens. Strom Thurmond, R-S.C., Joe Biden, D-Del., and Orrin Hatch, R-Utah, continued this case-by-case approach as chairmen as well. Biden noted that nominees would receive hearings even without two positive blue slips, so long as the White House engaged in pre-nomination consultation with home-state senators.
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.
This brings us to the subject of the article: my decision to hold a hearing and vote for Michael Brennan, one of President Trump?s nominees to the U.S. Court of Appeals for the Seventh Circuit. In August of last year, the president nominated Brennan to a Wisconsin-based seat after months of consultation with Republican Sen. Ron Johnson and Democratic Sen. Tammy Baldwin. Johnson promptly returned his blue slip. Baldwin did not, despite the White House?s consideration of two of her preferred nominees. Consistent with my policy and the blue slip tradition, I held a hearing for Brennan, a highly qualified nominee with bipartisan support in legal circles in his home state. The committee subsequently voted to send Brennan to the Senate floor, where he will receive a confirmation vote.
This controversy over the blue slip is the result of the Democrats? own actions in 2013. That year, they changed Senate rules to end the 60-vote threshold required for lower court nominees. The Democrats justified their decision by arguing that 41 senators should not be allowed to block nominees with majority support. Now in the minority, those same senators have changed their tune.