by Christopher Kang, ACS Board member and former Deputy Counsel to President Barack Obama
Meet Justice Lisabeth Hughes.
Senator McConnell blocked her nomination to the U.S. Court of Appeals for the Sixth Circuit.
By refusing to return his blue slip.
This was in a very different time.
A time when Republicans were for blue slips before now being against them.
A time when Senator McConnell was willing to—in his own description this week as he opposed blue slips—“black ball” one of his state’s Supreme Court Justices, twice-appointed by a governor of his own party.
A time when a Democrat was president.
In August 2013, a Kentucky-based vacancy occurred on the Sixth Circuit. As the Obama Administration reached out to judges and lawyers across the state, one name quickly rose to the top: Justice Lisabeth Hughes.
Justice Hughes had a sterling reputation after nearly 20 years’ experience on Kentucky’s courts, at all levels, including serving on the Kentucky Supreme Court since 2007. Republican Governor Ernie Fletcher had appointed her to the Kentucky Court of Appeals in 2006 and then the Kentucky Supreme Court in 2007. Kentucky has never had a female federal circuit judge, and there was no one more qualified or respected to break this glass ceiling.
In January 2014, the formal vetting began, including a Department of Justice review, an FBI background investigation, and an evaluation by the non-partisan American Bar Association, which gave her its highest rating, unanimous Well-Qualified.
This process was completed in the spring of 2014, and for nearly two years, Justice Hughes waited in limbo, as the Obama White House consulted with Senator McConnell, trying to gain his approval.
The next day, Senator McConnell killed the nomination, as his office issued only the following statement:
Leader McConnell tried to work with the White House to fill this vacancy, including submitting a qualified Kentuckian for consideration. Rather than work with him to fill this vacancy, they submitted Justice Hughes without even notifying Leader McConnell. He will not support action on this nomination.
When this statement says that the nomination was submitted “without even notifying Leader McConnell,” it must mean that he was not notified that the nomination would be made that day, because his office had been aware of her potential candidacy for years (and it had been publicly reported in the press for almost as long).
So Senator McConnell’s refusal to return his blue slip was based on the fact that President Obama had not accepted his one recommendation for the vacancy. As reported, that recommendation was then-U.S. District Judge Amul Thapar, who was confirmed to this position last May (because Senator McConnell’s obstruction of Justice Hughes had held the seat open) with 44 Democratic “no” votes. Not exactly a consensus recommendation.
Nonetheless, because Senator McConnell made clear he would not return his blue slip, Justice Hughes was denied even a Committee hearing, and the Senate was unable to consider her nomination or the two-decade judicial career on which her well-deserved reputation was built.
Now, contrast Senator McConnell’s actions from 2014 through 2016 with his statement this week:
My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.
President Obama consulted Senator McConnell for two years before Justice Hughes’ nomination.
President Trump’s entire vetting of Justice Stras took only two months before nomination.
President Obama nominated a state Supreme Court Justice appointed by a Republican governor, in an effort to reach bipartisan consensus.
President Trump nominated a state Supreme Court Justice selected by the conservative Federalist Society and Heritage Foundation for his U.S. Supreme Court short list, in an effort to provoke confrontation.
President Obama’s nomination of Justice Hughes would have broken a glass ceiling and brought historic diversity to that court.
President Trump’s nomination of Justice Stras would ensure the least diverse circuit court in the nation.
And remind those who disagree with Senator Franken’s substantive reasons for opposing Justice Stras’ nomination that Senator McConnell didn’t bother giving any substantive reason at all.
This is not to say that Senator Franken is right to withhold his blue slip simply because Senator McConnell acted worse. But is completely baseless to call Senator Franken’s decision a “new step” or a “new standard.”
By any understanding of the precedents and standards of how blue slips have been used—including by Senator McConnell with respect to Justice Hughes—Senator Franken’s application has been more than fair.
Some might argue that even if Senator Franken’s application of the blue slip standard has been fair, blue slips themselves are not. But that is a completely different argument.
And for those who supported blue slips from 2009 to 2016, it is a completely hypocritical one.
Make no mistake: Republicans are trying to change the rules in the middle of the game just so President Trump can force our courts even further to the conservative extreme. Anyone who doesn’t understand that needs to meet Justice Lisabeth Hughes.
This is not just a flip-flop with respect to his treatment of Justice Hughes’ nomination. This breathtaking hypocrisy also applies to five other circuit court nominees whom Republicans blocked by withholding blue slips.