By Dianne Feinstein
Originally appeared in Roll Call
Senate Republicans have done a head-spinning 180 on the value of the “blue slip,” a 100-year-old tool that gives home state senators the ability to sign off on judicial nominees in their states. This practice ensures that the White House consults senators on lifetime appointments and that nominees are mainstream and well-suited to serve in their states.
Just three years ago, Sen. Orrin Hatch wrote about the value of the blue slip and his commitment to upholding it during his tenure as chairman of the Judiciary Committee. He said that “weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power.”
But despite using the blue slip to block 18 of President Obama’s nominees — four circuit court judges in 2016 alone — and delay the confirmation of dozens more, Senate Republicans are now threatening to eliminate the blue slip to jam Donald Trump’s right-wing judges through the process.
This move would give President Trump free rein to pick whomever he wants and stack our federal courts with young, ideological judges preferred by Washington-based right-wing groups like the Federalist Society and Judicial Crisis Network.
To justify this about-face, Senate Republicans are attempting to rewrite history with a number of false and hypocritical claims. Let’s debunk them one by one.
The first false claim is that the blue slip has been applied inconsistently.
The fact is that the Congressional Research Service has found the Senate has confirmed just three judicial nominees without the support of both home state senators since 1979. That’s three out of thousands of judicial nominees.
No circuit or district court nominee has been confirmed without the approval of both home state senators in nearly 30 years, regardless of which party controlled the White House or Senate.
The next time Senate Republicans claim that the blue slip has been haphazardly applied, they need to be asked to name the nominees who’ve been confirmed over the objection of their home state senators.
Most recently, take a look at what happened during the entirety of the Obama administration — under both Democratic and Republican chairmen.
From 2009 to 2014, Chairman Pat Leahy didn’t allow a single one of Obama’s nominees to receive a hearing in the Judiciary Committee without two blue slips from home state senators. This was the same policy Leahy applied during President George W. Bush’s administration — he didn’t have one policy for Republican presidents and another policy for Democratic presidents.
From 2015 to 2016, Chairman Chuck Grassley also didn’t allow any of Obama’s nominees to receive a committee hearing without two blue slips.
The second false claim is that the blue slip is being abused because senators have never before used it to ensure the White House consults them on judicial nominees.
The fact is that two months after Obama took office in 2009, every Republican senator signed a letter to the president that not only demanded his consultation on judicial nominees to their home states, but went even further, saying that the home state senators’ approval was also required.
That bears repeating: The entire Republican conference told Obama that Republican senators would use blue slips to block any nominee to their states they did not personally approve.
During the Obama administration, Republican senators who refused to return blue slips suggested that the White House had failed to properly consult with them — or simply that they did not like the nominee — and then withheld their blue slips. But no matter the reason for declining to return the blue slip, their actions stopped the Judiciary Committee from any consideration of the nomination.
And the record clearly shows that the Obama administration did engage Republican senators in extensive consultation on judicial nominees to their states.
Carolyn McHugh, who now sits on the 10th Circuit Court of Appeals, detailed Hatch’s role in her nomination in her committee questionnaire. She wrote that she applied for the vacancy through Hatch’s office, interviewing with him and his staff. She made clear that Hatch had recommended her to the White House and that the White House nominated her based on that recommendation.
So the point is, Republicans would now deny their colleagues the same right that they took full advantage of.
The third false claim is that Democrats are obstructing Trump’s nominees, thereby necessitating the need to eliminate the blue slip.
The fact is that Trump’s nominees are being confirmed at lightning speed.
Obama’s first eight circuit court nominees waited an average of 209 days from nomination to confirmation. Trump’s first eight circuit court nominees waited an average of just 122 days from nomination to confirmation.
Obama had just two circuit court nominees confirmed by this time in 2009. Trump has had eight circuit court nominees confirmed by this same point in his first year.
The bottom line is that protecting the prerogative of home state senators is good for the federal judiciary and the country, as well as the Senate. It ensures that nominees chosen by presidents of both parties are mainstream and represent the values and legal communities of their home states.
Sen. Dianne Feinstein is the senior senator from California and the ranking Democrat on the Senate Judiciary Committee.