Senate Majority Leader Mitch McConnell says the tradition of “blue slips” should not be an “opportunity to blackball” judicial nominees for appeals courts. (Joshua Roberts/Reuters)
The top Republican in the Senate is ready to formally dispense with a long-running practice that gives senators an early chance to block federal judicial nominees who would have jurisdiction over their states — at least at the appeals court level.
In an interview with the New York Times this week, Senate Majority Leader Mitch McConnell (R-Ky.) said he wants to get rid of individual senators' power to block nominees to the appeals courts — the dozen powerful circuits just one notch below the Supreme Court — from being considered.
“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,” Mr. McConnell said on the Times’ “The New Washington” podcast, referring to the custom senators from affected states need to sign off on a physical blue slip before a nominee can formally start the congressional vetting process.
McConnell did not advocate ending the blue slip process for district court nominees, whose jurisdictions are entirely within one state.
Senate Republicans have been hinting for months they may change the blue slip rules if Democrats stood in the way of Trump's nominees. Fairly strict adherence to the blue slip process is one of the reasons the Senate had so much difficulty confirming former president Barack Obama's judicial nominees, leaving the federal bench with over 120 vacancies when President Trump took office.
But this is the first time the majority leader has formally endorsed such a change — and his comments were met with immediate backlash from his Democratic counterpart.
“Getting rid of the blue slip would be a mistake,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said in an emailed statement. “Preserving some of the minority’s power in the Senate has broad support because every one of us knows there are times when we’ll be there.”
Republicans have already been there. In 2009, Republican senators sent the Obama administration a letter warning him when it comes to the practice of blue slips — referred to in the letter as “observing senatorial courtesy” — they “as a Conference, expect it to be observed, even-handedly and regardless of party affiliation.”
But if the GOP makes good on McConnell’s wishes, it would not be the first time this year Republicans have changed the traditional rules about how judicial nominees are considered.
In April, Senate Republicans voted for a rule change to remove the procedural 60-vote threshold necessary for Supreme Court nominees to clear the way for the confirmation of Neil M. Gorsuch to the Supreme Court, over Democratic objections.
Republican leaders have been particularly frustrated by Democratic senators’ recent objections to appellate court judges, the most recent example being Sen. Al Franken (D-Minn.), who on Tuesday announced he would not return the blue slip for Minnesota Supreme Court Judge David Stras, who had been nominated to the U.S. Court of Appeals for the 8th Circuit Court. The 8th Circuit covers Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska. Last week, Oregon Democrats Sens. Jeff Merkley and Ron Wyden also said they would not return blue slips for prosecutor Ryan Bounds, whom Trump nominated to sit on the U.S. Court of Appeals for the 9th Circuit.
Democrats complain Trump’s nominees are too conservative. But Republicans argue the president should have more latitude to appoint judges to the appeals courts, each of which encompass a more geographically and politically diverse region than the federal district courts.
“The blue slip consultation process typically grants the President greater deference on circuit court nominees than at the district level,” Taylor Foy, a Judiciary Committee spokesman for Sen. Charles E. Grassley (R-Iowa), said in a statement.
But, he added, just because the blue slip process isn’t absolute for appeals court nominees, it doesn’t mean senators shouldn’t still be consulted.
“The blue slip process was always intended to ensure consultation, and Grassley fully expects senators to continue to abide by that tradition,” Foy said.
Ed O’Keefe contributed to this report.