9th Circuit nominee Ryan Bounds may turn into battle over Senate's 'blue slip' tradition

An Oregon prosecutor nominated as President Donald Trump's first pick to sit on the 9th U.S. Circuit Court of Appeals may prove to be the test case for whether the tradition of allowing home state senators to block federal judicial nominees will continue to be honored.

Senate Majority Leader Mitch McConnell, R-Kentucky, told a news organization that he intends to end the century-old tradition of giving home state senators the power to blackball federal judicial nominees.

One of the first judicial nominees who could be affected by this change would be Ryan W. Bounds, an assistant U.S. attorney in Portland, whom Trump named to fill a vacancy on the 9th Circuit.

Bounds' nomination has met with quick opposition from the state's two Democratic senators.

Through a system known as the blue slip process, home state senators of presidential judicial nominees have had to signal their approval before the nomination can proceed. Returned blue slips signal the imprimatur of such senators. Traditionally, the Senate Judiciary Committee has ignored nominations that do not receive favorable blue slips.

On the day Bounds' nomination was announced, Sen. Ron Wyden and Jeff Merkley, Oregon Democrats, sent a letter to the president, indicating that they would not, for the time being, return blue slips on Bounds because of procedural objections to how Trump selected Bounds.

The letter said that Trump ignored what they called "Oregon's long bipartisan tradition of working together to identify the most qualified candidates for judicial vacancies."

Since then, Bounds' nomination has idled.

But an article published Wednesday in the Weekly Standard, a conservative opinion magazine, quoted McConnell as saying that he was abandoning the process, which could allow the Senate Judiciary Committee to move forward with Bounds' nomination.

"'The majority' - that is, Republicans - will treat a blue slip 'as simply notification of how you're going to vote, not as an opportunity to blackball,'" McConnell told the magazine.

The announcement called into question who was calling the shots on whether the blue slips would be recognized, a decision traditionally reserved for the chair of the Senate Judiciary Committee, which first considers federal judicial nominees.

In a statement released hours after McConnell's comments were published, the committee's ranking member, Sen. Dianne Feinstein, D-California, "called on Chairman Chuck Grassley (R-Iowa) and the Republican Caucus to uphold the 100-year-old 'blue slip' process. ..."

Grassley's office did not return requests for comment on McConnell's statement, but the Washington Examiner quoted a spokesman for Grassley, Taylor Foy, as saying, "The chairman of the Judiciary Committee will determine how to apply the blue slip courtesy for federal judicial nominees, as has always been the practice."

So far, two of Trump's circuit judge nominations have been imperiled by threats of withheld blue slips. Sen. Al Franken, D-Minnesota, has also stated that he will not give his approval to 8th U.S. Circuit Court of Appeals nominee David Strass, who is a justice on the Minnesota Supreme Court.

Unlike Franken, Wyden and Merkley have not yet expressed ideological opposition to Bounds' nomination.

Neither Wyden nor Merkley have commented publicly on Bounds' qualifications.

Those who know him have speculated that Bounds would likely be a traditional conservative judge. His name came to the White House from U.S. Rep. Greg Walden, R-Oregon, who has described Bounds as a "rare Oregonian with a sincere commitment to conservative jurisprudence."

Attorneys who know Bounds have described him as a typical conservative choice for the federal bench.

But Bounds has never served in a judicial role, making his future jurisprudence difficult to gauge.

In recent days, spokespeople for Wyden and Merkley have deflected questions about Bounds' qualifications, simply responding that both senators expect judicial nominees to go through home state vetting procedures.

"The committee put together by Sens. Wyden and Merkley as well as Rep. Walden will be considering candidates for this opening," Wyden's press secretary, Hank Stern, said in an email Monday.

Neither office responded to requests for comment on the report of McConnell's statement.

Bounds has not yet been scheduled for a hearing before the Senate Judiciary Committee, Feinstein's office confirmed Wednesday.

"This decision should be honored as it has been for more than 30 years during both Republican and Democratic administrations. If a nominee doesn't receive blue slips from both home state senators, the committee shouldn't move forward," Feinstein said in a statement, referring to the statement by Wyden and Merkely.

As McConnell and other Republicans have emphasized, the blue slip process is not a Senate rule.

As detailed in a column for the Daily Journal by 9th Circuit Judge Milan D. Smith Jr., the process has changed over time.

In its earliest years, a negative blue slip required the Senate Judiciary Committee to report the nominee unfavorably to the Senate. It wasn't until 1956 that an unreturned blue slip had the effect of blackballing the nominee.

The power of the blue slip lessened during the 1980s and 1990s, but in 2007, Sen. Patrick Leahy, D-Vermont, reinstituted the rigidity of the blue slip, refusing to consider nominees before both home-state senators returned positive blue slips.

The resolution of the blue slip dispute will likely have an impact on Trump's 9th Circuit nominees.

There are four judicial vacancies on the court, including the seat Bounds has been slated to fill. When Judge Richard C. Tallman takes senior status next year as he has announced, that number will be five.

The vacancies are in Washington, Oregon, California, Hawaii and Arizona.

With the exception of Arizona, which is represented by two GOP senators, the other states all are represented by two Democrats in the Senate.

If Grassley decides to continue observing the blue slip process, this may affect Trump and Senate Republicans' ability to add reliably conservative judges to the 9th Circuit -- which has been decried and celebrated, depending on political persuasion, as one of the most liberal circuit courts in the country.

Spokespeople for McConnell did not respond to requests for comment on this story.