Grassley moves forward with 9th Circuit nominee, despite lack of support from home state senators

President Donald J. Trump’s first nominee to the 9th U.S. Circuit Court of Appeals, who lacks the support of his home state senators, will get a hearing before the Senate Judiciary Committee this week, indicating a possible change in the committee chairman’s “blue slip” policy.

Ryan W. Bounds, the Oregon federal prosecutor whom the president first picked to sit on the court in September, will appear before the committee Wednesday.

Oregon Senators Jeff Merkley and Ron Wyden, both Democrats, have opposed Bounds’ nomination since its announcement, first objecting to the White House’s selection process and then to articles Bounds wrote as an undergraduate student on race and campus sexual assault. The president again nominated Bounds to the court in January, after the previous nomination was returned to him due to lack of Senate activity.

Bounds’ nomination has been viewed as a test of the “blue slip” tradition, a longstanding Senate practice that encourages home state senators to advise the president on federal judicial nominations in their state. Senators have, for decades, returned blue sheets of paper indicating their approval or disapproval of nominees.

For months, Sen. Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee, remained silent on how he planned to proceed with Bounds’ nomination.

Grassley parted ways with his predecessor, Democratic Sen. Patrick Leahy of Vermont — who refused to consider any judicial nominees lacking two positive blue slips — when he proceeded with the nomination of Judge David Stras to the 8th U.S. Circuit Court of Appeals in November. Grassley moved ahead with the nomination, which did not have the support of then Sen. Al Franken of Minnesota.

“Circuit courts, as we know, cover multiple states,” Grassley said on the Senate floor in November. “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.”

But Bounds’ nomination is the first Grassley has allowed the committee to consider that lacks support from both home state senators since he took its helm in 2015.

Sen. Dianne Feinstein of California, the judiciary committee’s ranking member, has objected to the latest blue slip development.

“I oppose Chairman Grassley moving forward with a hearing for a judicial nominee, Ryan Bounds, who does not have a blue slip from either home-state senator,” she said in a statement Friday. “This is a devastating blow to the blue-slip tradition, which ensures that senators have a role in advising on judicial nominees from their states.”

Grassley’s decision to proceed with Bounds’ nomination came with no statement and was only made public when the hearing was listed on the committee’s online calendar.

Taylor Foy, a spokesman for Grassley, declined to comment on whether the Bounds decision marked a new rule for judicial nominees but fought back on the narrative told by the Oregon senators that they were not included in the nomination decision.

“There was ample consultation between the White House and the Oregon senators on this nomination,” Foy said in an email. “The White House reached out to discuss the vacancy more than a year ago, seriously considered the only candidate suggested by the senators, and waited several months for the senators to establish their judicial selection committee, despite being told the process would move much more quickly.”

The Oregon senators’ bipartisan selection committee ultimately approved of Bounds, along with several others. However, Merkley and Wyden learned about Bounds’ controversial college writing after the committee gave its imprimatur, they said.

What this means for circuit nominations for the three open California seats on the court is unclear.

Ashley Schapitl, a Feinstein spokeswoman, said the senator did not have any follow-up statements on how Grassley’s decision to proceed without support from both home state senators could impact the filling of the California seats.

She pointed to the nomination of Mark Bennett, Hawaii’s former Republican attorney general, who enjoys the support of his two Democratic home state senators, as a model of how Feinstein hopes the process will unfold in California.

A spokesperson from Sen. Kamala Harris’ office did not respond to a request for comment.