Grassley indicates departure from previous blue slip rule for federal judicial nominees

Sen. Chuck Grassley’s announcement Thursday that he would no longer allow home-state senators to block judicial nominees could ease the way for President Donald J. Trump’s lone pending nominee to the 9th U.S. Circuit Court of Appeals.

Traditionally, senators have been asked by the committee for their views on judicial nominees from their states. Responses were written on blue slips and, in recent decades, unreturned blue slips had the power to torpedo nominations. The blue slip practice is a century old and has been honored differently by past Judiciary Committee chairs.

In a speech on the Senate floor, the Iowa Republican said unreturned blue slips would no longer blackball federal judicial nominees. Grassley, who chairs the Senate Judiciary Committee, said he would proceed with the nominations of judges to the 8th and 5th circuits blocked by objections from senators Al Franken, D-Minnesota, and John Kennedy, R-Louisiana.

“The blue slip courtesy is just that, a courtesy,” Grassley said.

“Let me be clear,” he added later. “I will maintain the blue slip courtesy. But some of my Democratic colleagues and left wing outside groups mistakenly assert that the blue slip affords a home state senator veto power over a nominee.”

Trump’s first nominee to the 9th Circuit, Ryan W. Bounds was blocked in September by Oregon senators Ron Wyden and Jeff Merkley, both Democrats, who said they would not return blue slips for the federal prosecutor with ties to the conservative Federalist Society.

Grassley did not address Bounds’ stalled nomination, but indicated he was more likely to allow a single unreturned blue slip to stall a district court judicial nomination than a circuit judge’s nomination.

“[C]ircuit courts, as we know, cover multiple states,” Grassley said. “There’s less reason to defer to the views of a single state’s senator for such nominees when that nominee is going to serve several states in a circuit.”

The 9th Circuit covers 11 states and two U.S. territories. As of 2016, its purview included roughly 20 percent of the nation’s population.

Grassley said the intent of the blue slip process was to ensure the president confers with senators about judicial nominations.

“The blue slip is meant to solicit insight into nominees and ensure that the White House is adequately consulting with home state senators as the advice part of ‘advise and consent’ would imply,” he said, referring to the constitutional description of the Senate’s role in considering presidential appointments.

This issue, however, is the basis for the Oregon senators’ objection to the Bounds nomination. When Trump announced Bounds’ nomination, the senators said they would not return blue slips because Trump failed to consult their Oregon judicial nomination committee, which they say was a tradition.

Neither Wyden nor Merkley have commented on Bounds’ credentials or whether they would return blue slips if Bounds were to receive approval from their own home state nomination committee.

Neither senator returned requests for comment on Grassley’s remarks Thursday.

Unlike other senate procedures pertaining to the judicial nomination process, the blue slip tradition is not codified into a law or a senate rule.

Last month, Senate Majority Leader Mitch McConnell, R-Kentucky, said Republicans would no longer honor blue slips as vetoes to nominations.

The decision to honor or not honor blue slips has traditionally rested with the chair of the judiciary committee. At the time, Sen. Dianne Feinstein, D-California, the committee’s ranking member, called on Grassley to respond to McConnell’s remarks.

On Thursday, she decried the decision as partisan in nature.

“There’s only one reason to eliminate the blue slip, and that’s to allow President Trump to completely cut Democrats out of the process of selecting judicial nominees and continue the pattern of selecting nominees far outside the mainstream,” she said in a statement.

Grassley said that going forward he would defer to a policy followed by former Vice President Joe Biden, who chaired the judiciary committee from 1987 to 1995 as a Democratic senator from Delaware. Biden considered blue slips a “significant factor” for the committee to weigh, Grassley said, calling it a “sensible policy.”

Grassley took the reins of the judiciary committee in 2015 from Sen. Patrick Leahy, D-Vermont, who had chaired it since 2007. Leahy imposed a strict blue slip rule, blocking nominations that failed to garner two positive blue slips. This imperiled several of President Barack Obama’s picks for the bench, including four circuit court nominees.

In his speech, Grassley said senators could block the nomination of judicial appointees after consideration by the judiciary committee, invoking the memory of the failed nomination of Los Angeles Judge Carolyn Kuhl, who, in 2003, was picked by President George W. Bush to sit on the 9th Circuit. Her nomination was defeated by a Democratic filibuster after the judiciary committee approved her.

Grassley incorrectly stated that both California senators at the time did not return blue slips for Kuhl. Feinstein returned a blue slip for the nominee but later wrote a letter in opposition to her confirmation.