Senators Spar Over ‘Blue Slips’ at Judicial Hearing

WASHINGTON (CN) – Senators sparred over the judicial nomination process during a hearing considering two circuit court judges on Wednesday, with Democrats objecting to the end of a century-old tradition that allows for input from home-state senators.

Sen. Chuck Grassley, R-Iowa, who chairs the Senate Judiciary Committee, announced earlier this month he would hold a hearing for one of President Donald Trump’s nominees to federal appeals courts despite not receiving approval from both of his home-state senators.

That runs against the tradition known as the blue slip, which requires both senators from a judicial nominee’s home state to give their approval before the Senate Judiciary Committee schedules a nomination hearing.

Sen. Al Franken, D-Minn., did not sign off on Minnesota Supreme Court Justice David Stras’ nomination to the Eighth Circuit, citing “severe reservations” about his conservative legal positions, but Grassley allowed Stras a hearing nonetheless.

Speaking before Stras’ hearing on Wednesday, Franken said he only talked with the White House twice about Stras and that the administration was clear it intended to nominate Stras from the beginning. Franken and other Democrats argued the blue slip is an important congressional check on the White House’s power to nominate judges.

“In the absence of meaningful consultation and in the face of the disregard for the Senate’s constitutional role, I do not think the Senate should cede its power to the executive branch and end this long-standing custom,” Franken said.

The White House did not respond to a request for comment regarding Franken’s comments.

Grassley defended his decision allowing the nominations to go forward despite not receiving both home state senators’ blue slips. He said a single senator should not be able to completely grind to a halt a nominee’s path to the bench and cited a number of cases where past chairs have allowed nominations to go forward despite objections from home-state senators.

He added Sen. Pat Leahy, the Vermont Democrat who chaired the committee before Republicans took back the Senate in 2015, imposed a stricter interpretation of the blue slip procedure than most of the committee’s chairmen through history.

“Home-state senators are entitled to lobby against confirmation, but they can’t deny a nominee a hearing  for political or ideological reasons,” Grassley said Wednesday.

Grassley noted the blue slip process will remain in place for federal district court judges and United States attorneys.

Republicans on the committee generally supported Grassley’s move, but Sen. John Kennedy, R-La., raised his own concerns about the Trump White House’s judicial nomination process.

Kennedy signed off on the nomination of Stuart Duncan, who is up for a spot on the Fifth Circuit, but said he was not consulted in the process that made Duncan the choice for the seat. Kennedy said he received a series of calls from White House counsel Don McGahn in which the White House lawyer was “very firm” that Duncan would be the nominee.

“The truth is that I don’t know Mr. Duncan very well, I’m looking forward today to learning more about him,” Kennedy said at the hearing.

Sen. Bill Cassidy, R-La., who opened the hearing with a statement supporting Duncan, explained he convened a panel of 12 people who would help him fill the vacancy and that they recommended Duncan.

In a questionnaire submitted to the Judiciary Committee, Duncan said it was Cassidy’s office that first reached out to him, but indicated he did not speak with the White House Counsel’s Office until after speaking with Kennedy’s office.

Kennedy, who is in his first term in the Senate, was the only Republican to vote against former deputy White House counsel Gregory Katsas when the Senate confirmed him to the D.C. Circuit on Tuesday evening.

Speaking to reporters on Wednesday, Kennedy said he did so because of the potential conflict of interest that would come with having a White House attorney on a court that routinely hears challenges to executive branch policies.

“I think his credentials are breathtakingly impressive, but I think there is an appearance of a conflict of interest for someone to represent a client on Thursday and then Friday go across the street and sit on a court that hears cases involving that client,” Kennedy said.

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