Republicans in the Senate may continue to sour on Donald Trump for the foreseeable future, but there is one reason they will never fully turn on the president: The ability to pack the federal courts with life-tenured hyperconservative jurists is worth whatever pain Trump may cause in other quarters. To that end, and working faster than presidents who have come before him, Trump has nominated 50 very young, very conservative judges to fill 143 vacancies on the federal courts, with 16 named just last week. Already, Trump has had six of his nominees confirmed to the federal courts. His new offerings included his own deputy counsel, Greg Katsas, to the U.S. Court of Appeals for the District of Columbia Circuit. This opportunity, along with that at the Supreme Court, has always been one of the biggest long-term threats to progressivism of the Trump presidency and the most compelling reason to just look the other way for Trump-skeptical conservatives.
In their desperation to find any way to fight back, Democrats are turning to a century-old Senate tradition that was a staple of Republican obstructionism during the Obama era to derail—or at least slow down—the progress of some of these confirmations. According to this practice, known as the blue-slip process, any judicial nominee’s home-state senator must give consent to the Judiciary Committee to hold a hearing on a nomination. When a home-state senator turns in an innocuous-sounding blue slip, it means that senator has no objection to a hearing. Without a blue slip from both home state senators, the Judiciary Committee chair typically puts the nominee on hold.
The rule has applied in both district and circuit court judicial selections. A Democratic Senate during the Obama administration kept the blue-slip process intact, even though it meant that in certain jurisdictions seats remained unfilled for years. To be clear: Not one Obama district or circuit court nominee received a hearing unless both of his or her home-state senators returned blue slips. GOP senators also used the leverage of their blue slips to delay or block potential candidates from even getting to the nomination stage. For example, a seat on the 5th U.S. Circuit Court of Appeals—covering Louisiana, Mississippi, and Texas—has been vacant for more than five years. This is, in fact, one of the reasons Trump has so many empty seats to fill. Sens. Ted Cruz and John Cornyn of Texas objected to potential nominees for two 5th U.S. Circuit seats, as well as those for six district court vacancies.*
This past spring, though, Republican senators who had spent years using the blue-slip process to block Obama nominees threatened to do away with the practice if Democrats used them to block Trump’s. In May, Arkansas Sen. Tom Cotton warned that “we can’t allow Democratic senators to continue to obstruct this president’s agenda.” And a GOP proposal was floated this summer to end the blue-slip tradition at the circuit court level. This is mostly hilarious hypocrisy. It’s also, unfortunately, an attempt to limit one of the few remaining powers Senate Democrats have left in their arsenal. Until now, Trump has focused on picking judges from states with red-state senators. That changed last week, setting up a high-stakes fight.
Like the baroque senatorial details that animated the Merrick Garland and Neil Gorsuch debacle, this process is both arcane and tremendously consequential. That’s why Senate Democrats seem prepared to use it ruthlessly. Minnesota Sen. Al Franken announced late last week that he wouldn’t return a blue slip for David Stras, nominated for a seat on the 8th U.S. Circuit Court of Appeals. In addition to his objections to Stras’ record, Franken also voiced concern over the fact that the White House had not bothered to consult with him over the nomination. Amy Klobuchar, Minnesota’s other Democratic senator, urged Senate Judiciary Chairman Chuck Grassley not to gut the blue-slip process but also said she believed Stras should have a hearing before the committee before she makes a decision on his fitness and qualifications.
Asked for comment, Franken offered me this:
When the [blue-slip] process works as it should, the White House joins with home state senators to identify qualified, consensus nominees. And when the president and the senators are of different parties, that should mean identifying judicial moderates. Unfortunately, President Trump has demonstrated that he is less concerned with working collaboratively to fill judicial vacancies than his predecessor, which is not surprising given the fact that he has outsourced the job of identifying potential judges to the far-right Federalist Society and Heritage Foundation.
It doesn’t sound like Franken plans to relent on this one, even if some of his Democratic colleagues have been apt to bend. If other Democratic senators take a cue from him, it could mean either another high-volume political fight over the judiciary or another norm meant to defend minority party rights permanently shattered.
Last Thursday, another potential nominee ran into a blue-slip problem only hours after he was nominated to the 9th U.S. Circuit Court of Appeals. By tradition, Oregon usually has two seats on the 29-judge 9th Circuit, and by tradition, those judges are chosen by a bipartisan selection committee. Both Democratic senators from Oregon, Jeff Merkley and Ron Wyden, announced they would block Ryan Bounds, an assistant U.S. attorney in Oregon and Trump’s pick to fill a vacancy on the 9th Circuit. The pair explained in a letter to White House Counsel Don McGahn that they would not be turning in blue slips for Bounds because he had not been approved by that selection committee.
“As you are aware, in May we wrote you to explain Oregon’s long bipartisan tradition of working together to identify the most qualified candidates for judicial vacancies,” the two senators wrote. They added that the bipartisan committee, which has existed since 2009, would be willing to consider names and would be willing to expedite the elevation of a sitting federal judge who was a Republican appointee. “Unfortunately, it is now apparent that you never intended to allow our longstanding process to play out,” the senators wrote to the White House.
In states such as Oregon or Washington, where well-established bipartisan merit selection panels have taken down the temperature on judicial nominations under both Republican and Democratic administrations, use of the blue slip isn’t merely obstruction of a president. It’s also a protection of long-standing state prerogatives and protocols. The whole point of the blue-slip tradition, whether it’s used by Cruz or Wyden, is to shore up the notion that the states still matter.
If you are a Republican concerned about nothing but seating heaps of young pro-life judges on the courts before the Trump presidency implodes, these old prerogatives no longer matter (just as they didn’t for Garland). All that matters, according to this view, is the win. Preventing a wide series of norms from systematically collapsing is of no interest or utility to people enamored with court-packing. But for Senate Republicans, who are slowly coming to realize that this president is uniquely dangerous, reckless, and uninterested in their own best interests, giving away every last check on the executive seems somewhat short-sighted. Preserving the institution that is the judicial branch shouldn’t require the destruction of norms and traditions preserving everything else, including the Senate itself.
Update, Sept. 20, 2017: This paragraph has been updated to clarify that Republicans used the leverage of their blue slips, rather than the blue slips themselves, to keep a seat on the 5th Circuit open.
Correction. Sept. 20, 2017: This post originally misstated that Sens. Ted Cruz and John Cornyn of Texas had refused to sign off on any Obama nominees. They objected to two potential 5th Circuit nominees as well as those for six district court vacancies. (Return.)