Ryan Bounds finally got his confirmation hearing from the Senate Judiciary Committee earlier today. It came eight months almost to the day after Donald Trump nominated him for a seat on the Ninth Circuit Court of Appeals, after months of delays waiting for Oregon’s two senators to return their blue slips. Ron Wyden and Jeff Merkley both refused to do so, saying that they were concerned over essays Bounds had written over twenty years ago as an undergraduate student.
Judiciary chair Chuck Grassley finally had enough of waiting, and scheduled the confirmation hearing anyway. It heralds the end of the blue slip as a functional filibuster, a move which drew support from Senate Majority Leader Mitch McConnell as well:
For the third time in the Trump administration, Senate Judiciary Chairman Charles E. Grassley has moved forward with a confirmation hearing for an appeals court nominee over the objections of Democratic home-state senators.
The Iowa Republican set a Wednesday confirmation hearing on Ryan Bounds to be a judge on the U.S. Court of Appeals for the 9th Circuit, even though Oregon Sens. Ron Wyden and Jeff Merkley have declined to give their consent through the committee’s traditional process. …
McConnell said last week that he would move judicial nominees even if senators don’t return their “blue slip” — a Judiciary Committee tradition that asks a home-state senator to sign off on a blue piece of paper before the committee moves forward with a judicial confirmation hearing.
“My view is, no one senator ought to be able to stop a circuit court judge,” the Kentucky Republican said during a radio interview.
Normally, you’d expect the huzzahs and the hysteria to fall neatly along partisan lines, with a cui bono basis forming the distinction between the two. Today, however, the New York Times hosts a columnist and legal expert who issues three cheers for the end of the blue slip, at least as a tool of obstruction. Former prosecutor David Lat writes that this will not just benefit both parties, but also all of the Americans who have been waiting far too long for judges to become available to hear their cases:
Many people have bemoaned the demise of the filibuster and now the blue slip. It certainly reflects a decline in senatorial courtesy. It’s bad news for individual senators, who now have less power to scuttle nominations.
But the effect that scrapping blue slips will have upon the federal judiciary, and therefore the nation, is actually positive.
The federal bench has a high number of vacancies. In January 2017, the start of President Trump’s term, there were 106 vacancies in the life-tenured federal judiciary. Today there are 174 current and known future vacancies, although 33 of Mr. Trump’s judicial nominees have been confirmed. Of these vacancies, 72 have been declared judicial emergencies by the Judicial Conference, based on how long they have been open and the heavy caseloads in their courts.
Besides, Lat points out, the politics of these appointments matters very little, especially at the trial-court level. What matters more is having someone on the bench at all:
As any federal judge or law clerk can tell you, the vast majority of cases heard by federal courts are not political. While important to the litigants, these garden-variety cases involve the straightforward application of settled law, and they would come out the same way regardless of the judge’s political views. Hot-button cases in the news are the exception, not the rule. Even the Supreme Court — which picks the few cases that it hears, and therefore has an especially politicized docket — decides about two-thirds of its cases by unanimous vote.
As a practical matter, it’s much less important to have a judge appointed by a Republican or a Democrat than it is to have a judge appointed, period — confirmed and hearing cases as soon as possible. A judge’s politics will make a difference in only a tiny fraction of cases, but her presence on the bench will make a huge difference in terms of resolving cases expeditiously.
Lat makes one other good point about partisan benefit. There’s no doubt that the end of the blue slip as a means of obstruction will benefit Trump in the short run, but it will also help make this process a more normal function of the Senate. After the openings get filled now, the Senate will be able to maintain staffing much easier without having to rely on fits and starts only when the president’s party has the Senate majority. Or, at least there will be less excuse for procrastination.
So how did the hearing itself go? Bounds insisted that he hadn’t tried to hide those undergraduate writings, but that the Senate questionnaire had only asked for writings during and after law school [see update]. He allowed that his young-adult attempts to deal with issues probably lacked polish:
When Sen. Richard Blumenthal, D-Connecticut, asked why the “controversial” writings weren’t provided directly to the Oregon senators’ vetting committee, Bounds said Wyden’s staff only asked him for writings going back to his law school days.
“I followed the instructions that his staff gave me in writing,” Bounds said.
Bounds said that his college articles were “perhaps clumsy efforts” to fight what he saw as discriminatory attitudes and practices on campus. Under questioning from Sen. Christopher Coons, D-Delaware, Bounds said he recognizes there are people from long-marginalized communities who “continue to face obstacles and continue to face discrimination.” He, in particular, discussed an instance where an LGBTQ colleague told him about being physically assaulted.
“How did that affect you?” Coons asked.
“It was very upsetting,” said Bounds, after choking up and pausing a moment.
Bounds might not get a unanimous endorsement for confirmation, but he’s rated as among the top four possible candidates for the Ninth Circuit seat by the same committee run by Wyden and Merkley. He’ll likely get confirmed with a significant margin. Preventing that was the point of the blue slip strategy.
Update: Ed Whelan offers a correction, noting that I inadvertently telescoped two different requests. I had the right idea but got the details incorrect:
@EdMorrissey: Enjoyed your piece on Bounds, but there's a confusion between the Oregon selection committee and the Senate Judiciary Committee. On former, Wyden staffer told Bounds not to submit pre-law school stuff. On latter, Bounds submitted all.
— Ed Whelan (@EdWhelanEPPC) May 10, 2018
First, on the alleged failure to disclose: As Wyden and Merkley surely know, it was Wyden’s own staffer who informed Bounds by email that providing to the selection committee only his writings “going back as far as law school would be great.” All of Bounds’s contested articles were from his college days. So far from displaying a “lack of honesty,” Bounds fully complied with the request from Wyden’s own office.