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Senate Republicans Unite to Defend "Blue Slips":

All 41 Senate Republicans have signed a letter to President Obama calling upon him to renominate one or more of President Bush's stalled appellate nominees and respect the traditional role of home-state Senators in vetting judicial appointments. The letter notes that President Bush renominated a stalled Clinton nominee (Roger Gregory), and elevated another (Barrington Parker), and asks President Obama to consider doing the same. Further, the letter insists that the Senate Judiciary Committee respect the traditional blue-slip policy "to be observed, even-handedly and regardless of party affiliation." Failure to take such steps, the letter suggests, could prompt a Republican filibuster of appellate judicial nominees. Specifically, the letter warns that if GOP Senators "are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee" and that Senate Republicans "will act to preserve this principle and the rights of our colleagues if it is not." Politico and Ed Whelan have more.

I am no fan of the blue slip, particularly with regard to appellate nominees, but I certainly understand why Senators like it. Insofar as seats on the federal circuit courts of appeals are effectively divvied up among the states within each circuit, Senators want to preserve their prerogative to influence appointments to their states' seats. Focusing on preservation of the blue slip also provides common ground for Republican senators who disagree over what makes for a good appellate judge and whether the Senate should consider judicial ideology in the confirmation process. There is no way all 41 Senate Republicans would hold together to oppose an Obama nominee over judicial ideology, temperament, or personal failings (say, failure to pay taxes), but the caucus may well stick together over process and Senatorial prerogative.

It will be interesting to see how the Obama Administration and Senate Democrats, respond to this letter. Then-Senator Obama showed no inclination toward bipartisanship over judicial nominations. He supported the filibuster of Bush nominees, voted against Roberts and Alito and cloture for the Roberts and Alito nominations, and refused to join the "Gang of 14." Senate Republicans understandably wonder why they should treat Obama's judicial nominations any better than he treated those of President Bush. Yet continuing tit-for-tat and one-upmanship in judicial nominations has produced little but a deepening, downward spiral of obstruction and politicization of judicial nominations. Perhaps a mild overture by the White House -- say the renomination of stalled nominees to the Third and Fourth Circuits -- could help turn the page.

So there is no misunderstanding, were it up to me, I would eliminate the blue slip for appellate nominations. I also oppose filibusters of judicial nominations and believe all federal judicial nominations should receive reasonably prompt consideration by the Senate Judiciary Committee and an up-or-down vote. Further, I believe Presidents should receive substantial deference from the Senate in their choice of judicial nominees, and that Senate consideration should focus on qualifications and temperament, not ideology. This was my view when President Bush was in office, and it remains my view today. As a practical matter, however, I also recognize that some sort of accommodation by both sides may be necessary if we are to bring the retaliatory escalation of obstruction to an end.

Dilan Esper (mail) (www):
The key is that any deal has to hold no matter which party holds the presidency or control of the Senate. And that's the sticking point.

Ideally, I think Presidents should consult with members of Congress and try to nominate people who are less polarizing. I think the example of Clinton running Supreme Court nominees by Orrin Hatch is a good one. But I think any set of ground rules would be better than the current mess.

I doubt, however, there is actually a way out, because when the shoe is on the other foot, everyone has a tendency to flip-flop their positions.
3.5.2009 4:34pm
Adam B. (www):
There was no filibuster attempted of Judge Roberts.

Prof. Adler, where were you in Clinton's second term when nominees like Elena Kagan weren't getting hearings, let alone up or down votes?
3.5.2009 4:42pm
Greg Q (mail) (www):
Then-Senator Obama showed no inclination toward bipartisanship over judicial nominations. He supported the filibuster of Bush nominees, voted against cloture for the Roberts and Alito nominations, and refused to join the "Gang of 14." Senate Republicans understandably wonder why they should treat Obama's judicial nominations any better than he treated those of President Bush. Yet continuing tit-for-tat and one-upmanship in judicial nominations has produced little but a deepening, downward spiral of obstruction and politicization of judicial nominations.

IOW, wow, the Democrats really screwed things up. Now it's time for the Republicans to bend over and take it demonstrate they're better than that by not returning the favor.

Wrong. Now is the time for the Republicans to ram it down the Democrats throats, good and hard. Every sleazy, dirty, or obstructionist move the Democrats pulled any time in the last 8 years needs to be done back to them, as often as possible, over as big of nominations as possible.

Turn about is fair play. The Democrats, when in the minority, established the rules. It's time for the Republicans to play by them.

Next time Democrats are in the minority, they can chose to behave differently, and establish new rules. But until then, they absolutely deserve to get what they gave.
3.5.2009 4:46pm
Greg Q (mail) (www):
Adam B:

The Republicans were in the majority. They had every right to use their majority against President Clinton. 1993 - 1994, when they were in the minority, they didn't fillibuster any Clinton nominees.

From 2000 - 2006, the Democrats were in the minority. If they'd behaved the way the Republicans did in the first two years of the Clinton Administration WRT nominees, you'd have a point.

They didn't, you don't.
3.5.2009 4:49pm
Joe T Guest:
Nothing like seeing this pack of whiny, doddering old fools taking a wide stance on high principle. I'm actually rooting for the Dems to stick it to them after how they've treated libertarians and conservatives over the past few years. Maybe I'm getting off a little bit too much on seeing elected Republicans abused, but I'm kind of hoping to see something like a Bernadette Doehrn nomination to the Seventh Circuit. She would be a terrible, awful judge and probably do great damage, but I'd love to see Specter humiliating himself by doing his usual cooing routine in Judiciary hearings.

The Senate Republicans can take a long walk off a short bridge to nowhere as far as I'm concerned, at least until they start giving a tinker's damn about the principles of the people who vote them into office. Nice compromise on Porkulus, Specter! Hope you don't mind losing your blue slip privileges.
3.5.2009 4:50pm
ruuffles (mail) (www):

Every sleazy, dirty, or obstructionist move the Democrats pulled any time in the last 8 years needs to be done back to them, as often as possible, over as big of nominations as possible.

Except the Rs are missing two key ingredients:

1) an unpopular president with no political capital
2) a decent minority higher than the bare minimum 41
3.5.2009 4:57pm
Snaphappy:
Judicial nominations do tend to bring froth to the mouth, don't they Greg? If the Republicans were so principled, why not just hold hearings and then vote down Clinton's nominees if they didn't like them? Because they didn't want to force their members to vote for qualified, reasonable judges, perhaps? Instead, they kept them from ever getting hearings. Let's reflect again on what's "sleazy." At least the Democrats were willing to stand up and say that they disapproved of Bush's nominees.
3.5.2009 5:02pm
Steve:
Senate Republicans understandably wonder why they should treat Obama's judicial nominations any better than he treated those of President Bush.

The appropriate question is whether President Obama will make more of an effort towards bipartisanship than President Bush did, which remains to be seen. If Obama consults with the minority party and offers them more input into the process than Bush did, then that sort of good faith should be reciprocated.
3.5.2009 5:03pm
Adam B. (www):
So, Greg Q, a President is only entitled to an up-or-down vote on his nominees when his party controls the Senate?

Also, Republicans did attempt in 1994 to filibuster Lee Sarokin's nomination to the 3d Circuit. They failed. During those two years, they successfully filibustered Sam Brown's 1994 nomination to be promoted to the rank of Ambassador to the CSCE, and failed to filibuster Walter Dellinger for SG and Janet Napolitano's nomination to be US Attorney for Arizona.
3.5.2009 5:05pm
MS (mail):
Greg Q,

I like your idea. The nuclear options suddenly looks really good to me.
3.5.2009 5:21pm
My Middle Name Is Ralph:
Greg Q, what a silly distinction you make. Having a majority would certainly entitle them to vote the nomination down, but why should a majority make any difference whatsoever in whether or not a nomineee gets a vote?
3.5.2009 5:24pm
Christopher Cooke (mail):
If I were Obama, I would consider appointing one or two Bush appointees, unless they are too extreme for my tastes. I think a goodwill gesture like that would be appropriate.

On the "blue slip" privilege, I think I would let the Senate decide its own rules. Frankly, this sort of tyranny of "one," not simply a minority, has always bothered me.

Greg Q, regarding this quote:


Wrong. Now is the time for the Republicans to ram it down the Democrats throats, good and hard. Every sleazy, dirty, or obstructionist move the Democrats pulled any time in the last 8 years needs to be done back to them, as often as possible, over as big of nominations as possible.


If the Democrats really wanted to do what the Republican leadership tried to do to them, I suppose Harry Reid can always revive the "nuclear" option that Bill Frist was so fond of promoting, and not recognize the filibuster. Personally, I would try to be more accommodating, but that is why this "turnabout is fair play" rhetoric is misplaced, in my opinion.
3.5.2009 5:29pm
SteveW:
Have Senate Democrats said that they want to do away with blue slips? My recollection, which I'm sure Professor Adler will correct if I am mistaken, is that the Senate Judiciary Committee respected "blue slips" during the Bush Administration, both when it was under the control of Republicans and when it was under the control of Democrats.

The dispute during the Bush years came when President Bush made nominations without consulting Senators in advance, which he did repeatedly. Then when the home-state Senators who had not been consulted in advance exercised their "blue slip" rights, the nomination came to a grinding halt and sat in the committee endlessly.

Isn't that what happened?
3.5.2009 5:35pm
SPO:
The Dems started this with Reagan's and Bugh 41's judges. The GOP should not cave to Obama, who has no claim to get a single solitary judge confirmed. He made his bed, he can lay in it.
3.5.2009 5:36pm
hawkins:

The letter notes that President Bush renominated a stalled Clinton nominee (Roger Gregory), and elevated another (Barrington Parker), and asks President Obama to consider doing the same


Am I mistaken, or was this precedent clearly set before Bush?
3.5.2009 5:36pm
first history:
There is an easy way to avoid filibusters of judicial nominees, something that should have been done a long time ago: implement the nuclear option. The Democrats have more than enough votes to do so. It would be hard for the Republicans to suddenly oppose it since it was during a time when they were in the majority that the option was first proposed.
3.5.2009 5:49pm
Jonathan H. Adler (mail) (www):
Adam B. --

Thanks for the correction on Roberts.

In the 1990s I wasn't writing/thinking much about judicial nominations, but I've repeatedly criticized Republicans for their treatment of Clinton judicial nominees.

Some of my older posts on the history of judicial confirmation fights are here and here.

JHA
3.5.2009 5:51pm
Baseballhead (mail):
The nuclear options suddenly looks really good to me.
You mean all that righteous talk about principles was just hot hair? I'm shocked, shocked I tell you!
3.5.2009 5:56pm
Angus:
The Blue Slip has been in place since at least 1917 I've read. I also recall reading that the Republicans did away with the blue slip process from 2003-2006, and Democrats re-implemented it when they took control back of the Senate.
3.5.2009 5:56pm
first history:
There are alternatives that also could limit debate on judicial nominations without going "nuclear." From the CRS Report Changing Senate Rules: The "Constitutional" or "Nuclear" Option:


. . . [T]he Two-Speech Rule does not apply to executive business in the same way it does to legislative business. Limiting senators to two speeches during the consideration of any nomination, regardless of how many session days the nomination was pending, would bring about a vote on a nomination without the need to invoke cloture, or to consider amendments to the cloture rule.

Another alternative might be to require Senators who wish to filibuster a measure or matter (such as a nomination) to hold the floor and talk to maintain their filibuster. In the modern Senate, such displays are rare. Instead, the Senate routinely permits Senators to "suggest the absence of a quorum" as a means to delay action without the need to debate. The Senate, by precedent, has ruled such quorum calls dilatory, after cloture. By precedent, the Senate could make such quorum calls dilatory at any time, if no substantive business had intervened since a quorum had been previously established.

I would frankly like to see a return to good old days of round the clock filibusters. But given the "quality of life" concerns in the workplace, I doubt it will ever happen.
3.5.2009 6:08pm
Sarcastro (www):
Remember Abe Fortas!
3.5.2009 6:11pm
SPO:
Jonathan, Clinton's nominees got the same treatment that Bush I nominees got, and, by the way, can anyone seriously argue that the so-called controversial Bush 43 nominees were anywhere close to as controversial as some of Clinton's nominees, e.g., Richard Paez, Ronnie White, Rosemary Barkett. Plus, let's not forget that for the sin of opposing hacks like Ronnie White, GOP Senators were tarred as racist.
3.5.2009 6:12pm
Public_Defender (mail):
Now we know that the Republicans were just making it up when they said they believed the filibuster was unconstitutional. I agreed with the Democrats then that the filibuster is a lawful exercise of the Senates right to decide when and how to bring up decisions. But if Republican senators believed that the filibuster was so unconstitutional as to drop the nuclear option and bring the Senate to a halt, they would not be threatening filibusters so early.
3.5.2009 6:18pm
Greg Q (mail) (www):
Adam B:

No Democrat President deserves an up or down vote on any of his nominees. Certainly Barack "I support filibustering Bush nominees" Obama does not deserve to get an up or down vote for any of his nominees.

When there is again a Republican President, and the Democrats refrain from filibustering any of his / her judicial nominees, then Democrats will be entitled to the same. but not until then.
3.5.2009 6:21pm
Andrew J. Lazarus (mail):
A useful time line of changes in blue slips. Surprise, surprise, the GOP has trouble with the Goose/Gander Principle.
3.5.2009 6:26pm
Mike G in Corvallis (mail):
Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee's practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation. And we will act to preserve this principle and the rights of our colleagues if it is not.


The impression that I get from reading the letter is that the Republicans suspect that blue slips will be abolished for nominees from states with Republican senators, but not necessarily for all nominees. Blue slips for the Democrats, but no such privilege for Republicans.
3.5.2009 6:33pm
Bob from Ohio (mail):
Blue slips should be abolished. The idea that one senator can stop a nomination is not very democratic.

O should name his own people and not screw around with token leftover appointees either.

Sucks to be a stalled appointee on the cusp of lifetime tenure but so what. Elections have consequences. Both 2006 and 2008.
3.5.2009 6:36pm
Joe T Guest:
Blue slips for the Democrats, but no such privilege for Republicans.

So? Republicans squandered their years in office with featherbedding, and creating the possibility of this far left president and his radical agenda. Now it's time to pay for it. I can only hope that the RNC and the elected Republicans enjoyed screwing over all three legs of the Republican Party, because they're stuck with the bill. Social conservatives got insulting and ultimately meaningless token attention via things like the Schiavo debacle and inane Defense of Marriage Amendment; fiscal conservatives / libertarians got 14% annual budget increase and statist police policies; and moderate Republicans got the shaft from an inarticulate White House that was utterly incapable of defending its policies, resulting in political sea changes in formerly moderate northeastern and midwestern states. Well done!

We who used to vote Republican - or "Nazis" as the new RNC Chair prefers to call us - don't mind the discomfiture of the elected officials. Cuz, y'know, Nazis are mean like that.
3.5.2009 7:11pm
http://volokh.com/?exclude=davidb:

Wrong. Now is the time for the Republicans to ram it down the Democrats throats, good and hard.

Careful, this kind of imagery might prompt a post by Clayton Cramer.
3.5.2009 7:21pm
MarkField (mail):

Blue slips should be abolished. The idea that one senator can stop a nomination is not very democratic.

O should name his own people and not screw around with token leftover appointees either.

Sucks to be a stalled appointee on the cusp of lifetime tenure but so what. Elections have consequences. Both 2006 and 2008.


This is getting to be a habit: I agree. And I also applaud the intellectual consistency.
3.5.2009 7:28pm
Jonathan H. Adler (mail) (www):
Mr. Lazarus --

The problem with that timeline is that it is somewhat misleading. Neither Republicans or Democrats were entirely consistent in their enforcement of their respective blue slip policies. Furthermore, if Senate Democrats (and their supporters) defended resort to the filibuster because Senator Hatch didn't abide by the blue slip policy they preferred. If this was a reasonable position for them to take, what would be wrong with Senate Republicans adopting the same posture? After all, it is not as if obstruction of appellate judicial nominees or blue slip games began with during the Clinton Administration.

I would like the blue slip eliminated altogether, but I'm not holding my breath.

JHA
3.5.2009 8:04pm
Ben P:

No Democrat President deserves an up or down vote on any of his nominees. Certainly Barack "I support filibustering Bush nominees" Obama does not deserve to get an up or down vote for any of his nominees.

When there is again a Republican President, and the Democrats refrain from filibustering any of his / her judicial nominees, then Democrats will be entitled to the same. but not until then.


BS, most of the people saying this would not be saying any such thing had the democrats not fought bush's nominees over the past few years.

I maintained then that the filibuster is an important protection on minority party rights, and I'll maintain the exact same thing now. If Obama wants to avoid filibusters he can nominated judges that can garner 60 votes. It may not guarantee great jurists, but it certainly keeps some of the bad ones out.
3.5.2009 8:10pm
Bama 1L:
In unrelated news, BigLaw partners band together to defend pink slips.
3.5.2009 8:20pm
byomtov (mail):
No Democrat President deserves an up or down vote on any of his nominees.

What about Democratic Presidents?
3.5.2009 10:53pm
PlugInMonster:
Nice. The Republicans will be down to 37 seats after 2010 and shrinking. Let's have a drink to the extinction of the GOP and 100% Democrat rule!
3.6.2009 12:48am
DCP:

Let's be honest here. If we come to a point where all 41 wounded Republicans (including the moderates/liberals) are banding together to filibuster a nominee, then that will almost certainly mean that Obama has nominated somebody who is extremely controversial or unqualified.

It would seem to me that he will have a lot of room to maneuver when it comes to judicial appointments. And I doubt he will intentionally provoke a fight with so many other fish to fry.
3.6.2009 12:48am
David Welker (www):
As far as I am concerned, not recognizing blue slips does not count as "extraordinary circumstances" justifying a filibuster. So, Republican members of the Gang of 14 would be going back on their promise.

The appropriate response in that case would be for Democrats to invoke the "constitutional option" with respect to both judicial nominees and ordinary legislation.

I for one really hope that the Republicans do manage to hold together a filibuster on judicial nominees. I think it might be just what is necessary to kill the filibuster altogether.
3.6.2009 1:58am
MarkField (mail):

Let's be honest here. If we come to a point where all 41 wounded Republicans (including the moderates/liberals) are banding together to filibuster a nominee, then that will almost certainly mean that Obama has nominated somebody who is extremely controversial or unqualified.


Those 41 Republicans represent roughly 27% of the population of this country. Given that, I find it hard to see that they represent "moderate" opinion.
3.6.2009 10:44am
Joseph Slater (mail):
MarkField:

Interesting stat. Link/source?
3.6.2009 12:09pm
~aardvark (mail):
It's all going to be a moot point when Franken is seated and Specter realizes that the only way he can keep his seat is by jumping ship and letting the rats sink.


Now is the time for the Republicans to ram it down the Democrats throats, good and hard. Every sleazy, dirty, or obstructionist move the Democrats pulled any time in the last 8 years needs to be done back to them, as often as possible, over as big of nominations as possible.


This would almost be funny if the Republicans did not play stupid tricks both as the majority and the minority party. Obstructionism has consequences too--and if Republicans keep saying no to everything, as they have been so far, they will continue losing seats with every election.

And let's make one thing absolutely clear--Bush was the first president to ignore blue slips, and not just from the opposition party--the jerk would not even consult the Senators from his own party!

If you want the GOP to make an electoral comeback, obstructionism should be the last thing on their minds!
3.8.2009 12:32am

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