David Stras and Kyle Duncan, come on down. In a long-expected move, Senate Judiciary Chair Chuck Grassley (R-IA) has scheduled nomination hearings for two Donald Trump appointees to federal appellate courts despite a refusal from home-state senators to return their “blue slips.” Grassley had complained that Democrats had gutted the judicial-nomination filibuster on their own accord but had tried to use the traditional courtesy of the blue slip as a back-door, single-person filibuster.
Those days have come to an end — at least for appellate-court nominations:
Grassley announced on Thursday that he has scheduled Nov. 29 hearings for David Stras, Trump’s nomination to be an appellate judge on the 8th Circuit, and for Kyle Duncan, nominated to serve the 5th Circuit.
“Today I’m announcing that the Judiciary Committee will hold a hearing for two circuit court nominees, each of whom has one home state senator who has not returned a blue slip containing a positive endorsement,” Grassley said from the Senate floor.
Stras’s nomination has been in limbo since early September when Sen. Al Franken (D-Minn.) said he wouldn’t turn in his blue slip because he has “grown concerned that if confirmed to the federal bench, Justice Stras would be a deeply conservative jurist.”
Franken has other fish to fry at the moment anyway. Right now he’s too concerned about holding onto what little political support he still has from fellow Senate Democrats over an allegation of sexual assault from eleven years ago to worry about getting overruled on Stras. The allegation — and a picture that suggests that Franken molested a sleeping colleague on a USO tour — came just a day after Franken’s sanctimonious condemnation of Justice Don Willett for a Twitter joke, which has reduced his credibility on the discernment of judicial nominees to rubble.
This isn’t just a knee-jerk reaction to that opening; Grassley had spent the last few months preparing for this move. Franken’s obstructionism on Stras was so overtly political that it made it easy for Grassley to point out that Democrats had turned the blue slip into the filibuster they denied Republicans in Harry Reid’s 2013 rule change. But Grassley tailored this change in a particular manner that will make charges of escalation tough to stick:
Previous committee chairs have rigidly adhered to the blue-slip rule for district court nominees, whose courts span just a single state. But they have been more flexible for the more influential and powerful circuit courts.
“I’ll add that I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators,” Grassley said. “But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.” …
“I won’t allow the White House to just steamroll home-state senators,” Grassley will say. “But, as I’ve said all along, I won’t allow the blue slip process to be abused. I won’t allow senators to prevent a Committee hearing for political or ideological reasons.”
Grassley’s caveat suggests that Ryan Bounds won’t get scheduled for a hearing. Both of Oregon’s senators, Jeff Merkley and Ron Wyden, have withheld their blue slips in protest of a lack of consultation from the White House on his nomination. That may not last forever either, but Grassley wants to at least hold the line on the “advice” part of the Senate’s “advice and consent” role in presidential appointments to the federal bench.
As I noted in September, this returns the blue slip to its proper historical status over the past century of its existence. According to the Congressional Research Service, the Judiciary Committee has only allowed the blue slip to completely halt consideration of a nominee for brief periods. A single withheld blue slip prevented hearings between 1956 to 1978 and again from 2001-2003; from 1989 to the present, it took refusals from both home-state senators to block a hearing, and from 2003 to present only when the White House had not consulted them, as with Bounds. All Grassley has done here is to take the Senate back to its normal status quo ante.
In the meantime, the well-qualified Stras will finally get his hearing. One wonders just how much sanctimony Franken will have left for that hearing, assuming he’s still in position at all by that date.