*This piece originally appeared on Medium.
by Kyle Barry, Legal Defense Fund Policy Counsel
Senate Judiciary Committee Chairman Chuck Grassley has revealed that he is willing to trash longstanding Senate tradition and undermine his Senate colleagues to hand control of the federal courts over to President Donald Trump. Grassley said that he will allow Trump to go over the heads of Democratic senators to fill federal appeals court vacancies in their home states “because that’s the way it’s been.” Grassley’s statement is both historically inaccurate and dangerous, as it removes a key protection against this administration’s relentless attacks on democratic norms and the rule of law.
Grassley’s remarks addressed how he will apply the Judiciary Committee’s “blue slip” policy. Traditionally, judicial nominees do not receive a confirmation hearing until both senators from their home state indicate approval on a blue sheet of paper sent to the Committee. For 100 years, this policy has served as a vital part of the Senate’s constitutional obligation to provide advice and consent on nominations. The blue slip ensures that senators advise on who serves as federal judges for the people they represent and preserves independent courts by making judicial selection a more inclusive process not confined to the president and his political allies. The blue slip is even more valuable now, with a president who picks judges in concert with right-wing interest groups and rushes to announce nominees before the nonpartisan American Bar Association evaluates their qualifications.
Exceptions to the blue slip policy have been rare. Since 1951, only two judges have been confirmed despite a negative blue slip, and both were district court judges appointed by Republican presidents. Grassley’s predecessor, Democratic Senator Patrick Leahy, applied the rule strictly and never held a confirmation hearing unless both home-state senators approved. Grassley recognized as much when he defended blue slips after taking the chairmanship in 2015: “Judiciary Committee chairs of both parties have upheld a blue-slip process,” he wrote, “including Sen. Patrick Leahy . . . who steadfastly honored the tradition even as some in his own party called for its demise.”
Of course, in 2015 blue slips blocked President Obama from unilaterally appointing judges in states with Republican senators. Now, with Trump picking judges, Grassley has dramatically changed course, offering revisionist history to justify it. As reported in Roll Call, Grassley said that “the blue slip is more respected for district court judges historically than it has been for circuit,” and “that leads me to say there there’s going to have to be a less strict use or obligation to the blue slip policy for circuit, because that’s the way it’s been.”
Grassley is wrong.
Republicans blocked 17 Obama nominees using the blue slip, including six circuit court nominees. Indeed, four of the current circuit vacancies exist only because Republican senators refused to return blue slips for Obama nominees and Grassley, as Judiciary Chairman under a Democratic president, never held hearings. In these cases, blue slips not only preserved vacancies for Trump, they blocked efforts to add much-needed diversity to the circuit courts. President Obama’s nominee to the Eleventh Circuit, Judge Abdul Kallon, would have been the first African-American from Alabama on any federal court of appeals; Justice Myra Selby would have been the first African-American from Indiana on the Seventh Circuit; and Rebecca Haywood, a federal prosecutor from Pennsylvania, would have been the first African-American women from any state on the Third Circuit. Indeed, of the 17 total Obama nominees blocked by blue slips, just one was a white man; 10 were women and 10 were African American.
Given this history, Grassley’s intent to abandon blue slips for appellate judges is nakedly partisan and reckless, intended only to give Donald Trump control over the third branch of government. That Grassley would make this statement now, with Trump pushing the country closer to constitutional crisis every day, is unconscionable.
In March 2009, shortly after President Obama was sworn into office, the entire Republican Senate Caucus wrote a forceful defense of blue slips, urging Obama to “consult with us as [he] considers possible nominations to the federal courts from our states,” and voicing their expectation that “the Committee’s practice of observing senatorial courtesy” will be “observed, even-handedly and regardless of party affiliation.” Because of the “profound impact that life-tenured federal judges can have in our society,” they wrote, “the Founders made their appointment a shared constitutional responsibility.”
Under the Trump administration, the importance of that “shared constitutional responsibility” is at its zenith. Grassley should adhere to — not cynically rewrite — history, and uphold the Senate’s critical role in appointing federal judges.