On Blue Slips, Republicans' Hypocrisy Is Showing

      President Obama had been in office for less than two months when the Senate's Republican minority sent him an earnest letter imploring him to take steps what the letter called the "needlessly acrimonious" process of federal judicial appointments. The letter, signed by all 41 GOP senators, urged the president to consult with senators on judicial nominations and promised to block action on any Obama nominee who was not approved by senators from the nominee's home state.
      The letter's oblique reference to the Senate's long-established "blue slip" procedure cast "the principle of senatorial consultation (or senatorial courtesy)" as part of the Senate's "unique constitutional responsibility to provide or withhold its Advice and Consent on nominations." That was then, but this is now. Two of those who signed the letter, the Senate's GOP leader Mitch McConnell and the current Judiciary Committee chairman Charles Grassley, are pronouncing last rites for the blue slip procedure so that a Republican president can pack the federal judiciary without a semblance of bipartisan comity.
      The blue-slip procedure holds up Senate action on a president's judicial nominees until senators from the nominee's home state return a blue slip of paper assenting to the nomination. It is a custom, not a Senate rule much less a constitutionally prescribed requirement, but a custom long followed in a body that requires a measure of collegial courtesy to get some of its work done.
      Grassley took to the Senate floor this week [May 9] , however, to denounce the blue slip procedure as an extraconstitutional limitation on the president's Article II power to nominate candidates for lifetime seats on federal courts. Neither Grassley nor McConnell is known to have uttered any doubts about the procedure when they honored and practiced it to bottle up some of Obama's judicial nominations during his years in the White House.
      The double standard on this issue, sad to say, extends beyond the ignominious Senate Republicans to the gadfly journalist David Lat, who opined in The New York Times this week [May 9]: "Good riddance to the blue slip." Lat, a personal friend despite our ideological disagreements, conceded in reply to my question that he could not recall writing about the issue back when Republicans wielded it against Obama.
      Lat now admits that Republicans "abused" the procedure and casts his belated criticism as aimed at public rather than partisan interests. The blue slip procedure hurts the federal bench by leaving judicial vacancies unfilled and unfillable, he says. Its demise may benefit Republicans today or Democrats tomorrow, but the federal judiciary will be "the true winner" in the long run.
      Given current conditions, however, Lat is completely off point. Republican obstructionism in the final year of Obama's presidency left a record number of federal court vacancies as he left the White House. Now, Trump is choosing nominees at breakneck pace. A 61-page report by Judiciary Committee Democrats released on Thursday [May 10] details the Republicans' thus-far successful "efforts to stack the federal courts" with right-wing ideologues. The report decries the "degradation" of the confirmation process so as to limit any true deliberation.
      Grassley has changed the previous practice of scheduling only one circuit court nominee at a time in favor of allowing two circuit court nominees along with multiple district court nominees all on the same day. The Democrats note that stacking nominees hampers senators' ability to study background materials or thoroughly question nominees. After hearings, judges are confirmed "as quickly as possible, without thorough review" — with floor votes on average only 20 days after committee action.
      Now, the Republicans are moving to short-circuit floor procedures as well by proposing to limit debate on district court nominees to two instead of 30 hours once the Republican majority votes to invoke cloture. The resolution introduced in December by Oklahoma Republican James Lankford is awaiting consideration in the face of a strongly worded letter from civil rights organizations opposing the move.
      Lat professes to be agnostic about the nominees who are being rushed into lifetime tenure through this process. Most court cases would come out the same way regardless of the judge's politics, he argues. The short answer to that argument: Neil Gorsuch and the frozen truck driver.
      Clearly, Trump, Senate Republicans, and Trump's political base are counting on his judges to shift federal courts away from protecting, for example, LGBT rights  and toward favoring companies in disputes over regulatory policies protecting consumers, workers, and the environment. The Democrats' report underscores the contrast between Obama's judges and Trump's. Obama's judges represented the full diversity of America: 52 percent of district court nominees, persons of color; 52 percent, women. Trump's vision appears to be a federal judiciary of white men: only 8 percent of district court nominees are persons of color and only 24 percent women.
      One final point: the president who is so intent on reshaping the federal judiciary has little respect for the rule of law or the goal of impartial justice. The candidate who attacked the Mexican-American judge in the Trump University case is now the president who attacks judges who rule against his policies — as many have done. Contrary to Lat, the federal judiciary will not be the winner if Trump is given an even freer hand in choosing federal judges.