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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.

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Judicial Nomination Filibusters for the NYT, but Not the GOP:

Yesterday's New York Times had a particularly intemperate editorial on the subject of judicial nominations. Though the Times supported Senate Democrats' filibuster against several Bush judicial nominees -- and is still unready to abandon the tool — the Gray Lady's editorialists are apoplectic at the suggestion that Senate Republicans might do the same, even in pursuit of "appropriate" White House consultation on prospective nominees.

The Times still defends those old filibusters, but only against conservative judicial nominees. Resort to the filibuster "can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench," the Times explains. But threatening a filibuster is inappropriate in pursuit of greater consultation.

If anything, the Times has it backwards. I do not believe it is ever appropriate for the Senate to filibuster nominations on ideological grounds, and I have no love of blue slips. If filibusters against nominations are ever appropriate (and I stress the "if") it would be on procedural grounds, such as to ensure the consistent application of Senate rules. I find resort to procedural tactics less objectionable when the aim is to ensure that Senators have adequate time to review a nominee's record than when used to defeat a judicial nominee who enjoys majority support.

The Times' argument is also difficult to square with history. Senate Democrats did not simply filibuster the "least-competent, most radical" Bush nominees. While the filibuster was deployed against my least favorite Bush nominee, some of those Senate Democrats sought to block were among the most impressive and accomplished. Nominees with majority "well qualified" ratings from the ABA were stalled, while those with simply "qualified" ratings (or worse) sailed through. Senate Democrats did not filibuster Miguel Estrada because he was any more conservative or less qualified than other appellate nominees. To the contrary, he was blocked because Senate Democrats feared he might be nominated to the Supreme Court. In other cases, filibusters were explicitly used as payback for GOP failure to move Clinton nominees, consult adequately with Senate Democrats, or respect the dreaded blue slips the Times now decries as "undemocratic." If it was okay for the Senate to filibuster Henry Saad to force the renomination of Helene White, how are the Republicans out of line now?

The Times editorial is also over-the-top in its characterization of Bush nominees now on the bench. "The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims." Those last bits are particularly amusing given the Supreme Court's expansive rulings on standing and habeas rights in Massachusetts v. EPA and Boumediene, respectively, not to mention the Wyeth decision handed down last week -- a decision that should help put to rest claims that federal courts exhibit "reflexive deference to corporations."

Setting the merits of individual cases aside, it is hard to argue that the Supreme Court is particularly right wing, as I've discussed at length. It is also hard to take seriously the Times' suggestion that federal courts are "stock[ed]" with "conservative ideologues." President Bush named approximately one-third of the judges now sitting on the federal appellate bench. This is close to what one would expect given his eight years in the Oval Office -- if anything, the proportion of Bush nominees on federal appellate courts is below the norm.

Now the Times calls upon President Obama to "repair the damage" wrought upon our legal system by Bush nominees through the nomination of "highly qualified, progressive-minded judges" who will "counterbalance" the "ideologues who control many appeals courts." The folks at Times Square should take a deep breadth and relax. As I explained here, President Obama is likely to name close to one-third of the federal appellate bench in a single term, all but erasing any purported conservative dominance of the federal courts. Even if President Obama emulates his predecessor by renominating a few Bush nominees, there's little doubt Democratic nominees will constitute a majority of federal appellate judges in 2012.

Finally, I would note that the Times editorial is riddled with inaccuracies and misrepresentations. Ed Whelan details some of them here (see also here).

UPDATE: Ed Whelan has more on what was, and was not, done with blue slips here.

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The NYT's Love-Hate Relationship with Blue Slips:

In its March 9 editorial on judicial nominations (which I discussed here), the New York Times called for eliminating the use of "blue slips," through which home-state Senators can block judicial nominations. Specifically, the Times' editorialists wrote:

Mr. Leahy must decide whether to follow the Senate's "blue slip" tradition, which holds that judicial nominees should not move forward without their home-state senators' support. Blue slips have no constitutional basis, are undemocratic and are subject to abuse. The Republicans abandoned them when they controlled the Senate under Mr. Bush. Blue slips should be allowed to die a quiet death.

I am no fan of blue slips, and never have been. Yet, as Robert Alt notes, this is something of a change of heart for the Times. Back in 2001, the Times was all about blue slips, encouraging their use by Senate Democrats to block President Bush's judicial nominees. Back then, just before and after Bush announced his first crop of nominees, the Times wrote:

  • "[P]ast abuse does not mean the Democrats should now abandon the blue-slip policy completely and give the Republicans carte blanche . . . ." (April 27, 2001, A24)

  • "A key is for the Democrats to stand firm on enforcing the prerogative under the so-called blue-slip policy that allows any senator to block a nominee from his home state." (May 11, 2001, A34)

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Filibusters and Blue Slips (Again):

A common argument making the rounds is that Senate Democrats only filibustered some of President Bush's judicial nominations because then-Senate Judiciary Committee Chairman Orrin Hatch violated Senate traditions with regard to blue slips. Let's assume for the moment that the charge against Hatch is accurate, does this explain the filibuster of Bush nominations? No. Filibusters were used to stall or block the confirmation of nominees for which blue slips were completely irrelevant, including Miguel Estrada and Priscilla Owen. Estrada was nominated to the U.S. Court of Appeals for the D.C. Circuit, so there was no blue slip issue whatsoever. Owen was nominated to a Texas seat on the U.S. Court of Appeals for the Fifth Circuit, and both Texas Senators strongly supported her confirmation. Why, then, were they filibustered? Here's the case made by the NYT editorial board at the time:

Filibustering Judge Owen's confirmation would send the Bush administration two important messages: the president must stop packing the courts with ideologues, and he must show more respect for the Senate's role. . . .

The filibuster is not a tool to be used lightly. But the Senate has been right to use it against the nomination of Miguel Estrada, who is hiding his views on legal issues. It should do the same to stop the once-rejected Judge Owen, and tell extreme conservatives in the Bush administration to stop trying to hijack the federal judiciary.

The other odd thing about the "Senate Democrats were just defending blue slips" argument is that it would actually seem to justify Senate Republican use of a filibuster for the same purpose. After all, if filibusters were an acceptable way to enforce the traditional blue slip policy before, they should no less acceptable today. And even if Senate Republicans opposed such filibusters in the past, would it be wrong for them to acquiesce to the new norm created by Senate Democrats? They opposed the filibuster for judicial nominations, but they lost that fight. Save for the few who (wrongly) maintained that such filibusters were "unconstitutional" (as opposed to "extraconstitutional," undemocratic, or merely unwise), I am not even sure the hypocrisy charge sticks all that much if the alternative is "unilateral disarmament."

As I've made clear repeatedly, I think Senate Democrats were wrong to filibuster Bush judicial nominees, particularly on ideological grounds. I further believe Senate Republicans would be wrong to respond in kind, even to defend the blue slip. I believe filibusters have no place in the judicial confirmation process. A Senate minority should not block the confirmation of judicial nominees who enjoy majority support. Period. But I am not sure those who supported the use of such tactics have much basis to complain now that the shoe is on the other foot.

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