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- The brewing war over President Donald Trump’s judicial nominees turned hot again.
- This time, it involves the “blue slip” process and a Wisconsin judicial nominee.
The Senate battle over the confirmation of President Donald Trump’s judicial nominees turned hot again this week as Democrats went after Senate Judiciary Chairman Chuck Grassley, accusing him of going back on his word for how he would handle the “blue slip” process.
It was the latest dust-up in what’s been a lengthy – and mostly under-the-radar – fight to get Trump’s judges on the federal bench.
On Wednesday, Grassley held a hearing for Michael Brennan, a Wisconsin lawyer nominated to a vacancy on the US Court of Appeals for the 7th Circuit. Brennan received a “blue slip” from Republican Sen. Ron Johnson but not from Democratic Sen. Tammy Baldwin.
The blue slip is a century-old Senate tradition that allows senators to give or withhold their blessing for a judicial nominee from their state. The process provides the party that does not control the White House with leverage over a good number of the president’s nominations.
The process is intended to provide a more bipartisan consensus on judges who will serve in or represent a senator’s home state when the president is of the opposition party, encouraging communication between the White House and home-state senators before a nomination. But the opposition party has sometimes used the blue-slip process to stonewall nominations and prevent the president from naming judges in their states.
Late last year, Grassley said he would no longer require both home-state senator blue slips to be returned for circuit court nominees in order for the nominee to receive a hearing before the committee, which had been the precedent. However, Democrats pointed to Grassley saying he would still honor the old system if a home-state senator was not properly consulted by the White House ahead of a nomination.
“Senator Joe Biden, when he was Judiciary Committee chairman, articulated a sensible policy with respect to the blue slip,” Grassley said in his November 2017 speech outlining the new blue-slip policy. “He said that a negative blue slip will be ‘a significant factor’ for the Committee to weigh but that ‘it will not preclude consideration of a nominee’ unless the administration failed to consult with the senator. I intend to follow this practice for negative and unreturned blue slips. This practice is consistent with the vast majority of the blue slip’s history.”
In this instance, Baldwin insists she was not properly consulted, but Grassley advanced the nomination anyway.
A Judiciary Committee spokesman said Grassley met with Baldwin last week to discuss her concerns, adding that Baldwin “was adequately consulted before” Brennan’s nomination.
“So there is no reason to further delay committee consideration,” spokesman Taylor Foy said in statement to Roll Call.
Baldwin denied any “meaningful consultation” took place.
‘I find it really very hard, and particularly for a woman senator who has tried so hard … for her view to be rebuffed in this manner’
In Wisconsin, Johnson and Baldwin established in 2013 a bipartisan judicial nomination commission by which possible nominees are considered. Brennan did go through the commission, but Baldwin said it did not support his nomination, which the White House made in August. Additionally, the White House interviewed Brennan in March, before the commission began reviewing him.
“The president showed a complete disregard for a process that has served our state well for decades,” Baldwin said in a Monday statement. “I am extremely troubled that the president took this partisan approach that disrespects our Wisconsin process.”
Baldwin added that Grassley “should not show the same disrespect by breaking with 30 years of precedent and eliminating the blue slip process for this nomination.”
Democratic Sen. Dianne Feinstein, the ranking member on the Judiciary Committee, criticized Grassley as well.
“Mr. Chairman, I find it really very hard, and particularly for a woman senator who has tried so hard, who has worked with her state commission, for her view to be rebuffed in this manner,” she said in remarks ahead of the hearing.
Feinstein added that Baldwin “appears grievously injured by this.”
“She has worked with, what I understand, is a very fine screening commission with Sen. Johnson in the state, and is deeply concerned that this action has been taken,” she said. “I recognize the majority party has a great deal of power. Their voice is dispositive. But the Senate, unlike the House, has preserved strong rights for those in the minority, and the blue slip has been one of these traditions. It appears this is no longer the case.”
Carl Tobias, a University of Richmond professor and expert on judicial nominations, told Business Insider in an email that this “situation is very different” from Grassley having considered past nominees who lacked at least one blue slip because of how Baldwin was not properly consulted.
“The nominee did not secure the requisite votes to be recommended to the White House” by the Wisconsin commission, “but the White House nominated him anyway.”
“Grassley said that he was making an exception for circuit nominees, but that lacks persuasiveness as a matter of historical practice and slips can be even more important for circuits as all senators treat these vacancies as more important than district ones,” he continued. “[Democratic] senators like Feinstein, [Chris] Coons and [Sheldon] Whitehouse strongly argued that Grassley’s move was unfair to Baldwin and to the process in the future because it will be difficult to restore the tradition once it is eroded.”