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That Was Then, This Is Now: Blue Slips and Judicial Nominations

Senator Chuck Grassley

Senator Grassley, Chair of the Senate Judiciary Committee, has been riding roughshod over the Committee process over the past year. Whether it’s rushing nominees through hearings and a vote, stacking hearings with multiple Court of Appeals nominees, or voting on blocks of almost two dozen judicial and executive branch nominees at a time (to give a very recent example), the Chairman has been undermining the Committee’s ability to rigorously scrutinize the Trump Administration’s judicial nominees – many of whom have extremely troubling records that warrant thorough review and debate. The most recent example of the Senator’s total disregard of norms and traditions pertaining to the nominations process? Scheduling a hearing on the nomination of Michael Brennan to a Wisconsin-based seat on the U.S. Court of Appeals for the Seventh Circuit without the consent of both of his home-state senators.

Under the Senate’s longstanding “blue slip” tradition, judicial nominees as a general principal do not move forward through the confirmation process over objections from Senators from the nominee’s home state. The blue slip tradition respects Senators’ constitutional role of advice and consent to nominees and ensures meaningful consultation by the President. This tradition was robustly enforced during the Obama Administration, when 18 judicial nominees did not receive a hearing because of objections from home-state Republican Senators. Among those blocked nominees: Victoria Nourse, to a Wisconsin-based seat on the 7th Circuit. When Republican Ron Johnson was elected to the Senate, he refused to return his blue slip on her nomination – arguing that he should have a role in the process for choosing a nominee to fill the seat. And several Wisconsin attorneys, including one Michael Brennan, wrote an op-ed supporting Johnson’s refusal. The op-ed made the point that “There are now two senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move.”

Which brings us to the present day, and Senator Grassley’s scheduling of a hearing on Brennan’s nomination today, despite the fact that Senator Tammy Baldwin has not returned her blue slip. And Brennan did not receive the requisite support from Wisconsin’s bipartisan Federal Nominating Commission that Johnson (and Brennan’s op-ed) argued so strenuously should be part of the nominations process.  Indeed, Brennan’s Judiciary Committee questionnaire indicates that he was interviewed by Trump Administration officials even before the Commission began accepting applications.

As Brennan’s op-ed so poetically put it, “Lady Justice is blindfolded, which represents her neutrality. Neutrality comes from applying the same procedures to all.” The Committee should not now skip these important procedures long put in place. It should not hold a hearing on Brennan’s nomination.