WASHINGTON – Senate Republicans are pushing to make it harder for home-state senators to derail judicial nominations. Sen. Al Franken is pushing back.
The Minnesota Democrat opposes the nomination of Minnesota Supreme Court Justice David Stras to the Eighth U.S. Circuit Court of Appeals. Franken’s refusal to return a so-called “blue slip” OK’ing Stras has effectively scuttled the nomination under Senate rules. Senate Majority Leader Mitch McConnell, R-Ky., said Wednesday that he wants to rewrite those rules.
“Regardless of what tactics are used by Democrats, the judges are going to be confirmed,” McConnell told the Weekly Standard, arguing that the blue-slip process should no longer be honored. Republicans will treat a blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball,” McConnell added.
But the choice of abiding by or abandoning the Senate’s long tradition of allowing home-state members to torpedo a judicial nomination rests with Judiciary Committee Chairman Chuck Grassley, R-Iowa, not McConnell. Grassley has been a longtime supporter of blue slips.
“[I]n an attempt to stack the courts with right-wing judges, powerful special interests and conservative groups are pressuring Senate Republicans to kill off the blue slip,” Franken said in a statement.
“In the face of this pressure, I urge Chairman Grassley to demonstrate the same integrity that [past Democratic chairman] Senator [Patrick] Leahy demonstrated and to protect the prerogatives of all senators — Republican and Democratic alike.”
Grassley spokesman Taylor Foy said that the senator has a tradition of using blue slips, and “expects senators and the president to continue engaging in consultation when selecting judicial nominees.”
But the blue slip practice is not guaranteed, he added, saying that Grassley “will determine how to apply the blue slip courtesy for federal judicial nominees, as has always been the practice,” and would address “abuses” of the process “on a case-by-case basis.”
Franken has said he finds Stras too conservative to support. The Eighth Circuit already has a number of conservative judges, he argued. Franken’s Minnesota colleague, Sen. Amy Klobuchar, has said she would have supported the Trump administration’s pick to come to a hearing, but didn’t indicate whether she’d vote to confirm Stras.
A spokeswoman for Klobuchar said the senator “strongly believes” that allowing home state senators to weigh in on judicial nominees is “an important check and balance and should remain in place.”
The 43-year-old Stras is well-regarded in Minnesota judicial circles as a thoughtful jurist open to working with colleagues from different points of views. His own views are staunchly conservative. He clerked for Supreme Court Justice Clarence Thomas and was on the Federalist Society’s shortlist of potential U.S. Supreme Court nominees.
Both parties have abided by the blue slip tradition for the past century, with only rare examples of judges making it to the bench without the blessing of both home-state senators. It last happened in 1989. Republican senators withheld blue slips on 18 judicial nominees during the Obama administration. In 2016, McConnell refused to return a blue slip for Kentucky Supreme Court Justice Lisabeth Tabor Hughes, derailing her nomination by President Obama to the Sixth Circuit Court.
“I strongly urge Chairman Grassley to defend the Senate’s constitutional prerogatives and continue honoring the blue slip process,” Franken wrote.
In addition to the Stras standoff, both of Oregon’s Democratic senators are blocking Trump’s nominee to the Ninth Circuit.
McConnell’s comments come as conservative groups are pressing him to more aggressively act to support Trump’s judicial nominees. According to a report in Politico, the conservative Judicial Crisis Network is planing to spend a quarter-million dollars on ads pushing McConnell to clear more of Trump’s nominees.
Stacked behind Stras, several other key posts in Minnesota remain vacant. The state is waiting for the administration to nominate a new U.S. attorney, two district court judges and a new U.S. marshal.