Despite McConnell Reservations, Tool to Block Judicial Nominees May Stay

WASHINGTON (CN) – While Senate Majority Leader Mitch McConnell called Wednesday for a change to a Senate tradition that lets senators block federal judges nominated in their home state, it remains unclear whether the old process will actually disappear.

Under Senate tradition, nominees for federal judgeships can only go forward if both senators from their home state sign off on their nomination on a form known as a blue slip, a name it gets from its color. Recent changes to Senate procedure mean that a home state senator not signing off on a blue slip is the most effective way for the minority party to block a nominee from going forward.

McConnell, a Kentucky Republican, told the New York Times on Wednesday he would support doing away with the blue slip tradition for nominees to circuit courts, instead making the procedure simply an indication of how the senator would vote rather than a full blockade. He supported keeping the current tradition for nominees to district courts.

“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” McConnell told The New York Times in an interview.

Sen. Al Franken, D-Minn., announced earlier this month that he refused to sign off on the nomination of David Stras, whom Trump nominated to the Eighth Circuit Court of Appeals. Franken said Stras would be a “deeply conservative jurist,” citing his past praise of the late Justice Antonin Scalia and his experience clerking for Justice Clarence Thomas, two icons of originalist legal theory.

Oregon Democrats Sens. Ron Wyden and Jeff Merkley, both said they would do the same for Ryan Bounds, a nominee for the Ninth Circuit Court of Appeals.

But even with McConnell’s support it is not clear whether the Judiciary Committee would make a move to completely do away with the tradition, though it is not a formal Senate rule.

“I have not detected any groundswell of support to do away with it,” Sen.

Richard Blumenthal, a Connecticut Democrat who serves on the Senate Judiciary Committee, said in an interview Thursday.

But Texas Sen. John Cornyn, the number two Republican in the Senate and a member of the Judiciary Committee, said it could be reasonable to do away with the tradition “on a case by case basis.” Cornyn specifically pointed to Franken’s decision to block Straus not because of concerns about his qualifications for the job, but because of the legal theory to which he subscribes.

“I think it’s good to have consultation and for the White House to be required to work with senators of both parties on nominees, but where a senator admits that the nominee is qualified, but simply disagrees with the judge’s judicial philosophy I think that’s an inadequate reason to block him,” Cornyn told Courthouse News.

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