A battle over a little-known rule that allows Democrats to block President Trump’s judicial nominees is heating up in the Senate.
The “blue-slip” rule — a senatorial courtesy upheld by tradition — allows a home-state senator to stop a lower-court nominee by refusing to return a sheet of paper, known as the blue slip, to the Judiciary Committee.
Senators traded rhetorical shots on Wednesday after tensions over the issue — which have been simmering for months — appeared to spill over.
Senate Majority Leader Mitch McConnell (R-Ky.) said he doesn’t believe a Trump pick should be blocked just because a blue slip isn’t returned.
The Kentucky Republican told The Weekly Standard that the blue slip should be viewed “as simply [a] notification of how you’re going to vote, not as an opportunity to blackball” a nominee.
Don Stewart, a spokesman for McConnell, added that the comments in The Weekly Standard interview were a reflection of “the Leader’s well-known public position on the matter.”
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“We have not made any announcements about a Conference or committee position,” he added.
McConnell made similar comments to The New York Times last month, saying: “My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote.”
But because the Senate’s “blue slip” practice isn’t a rule but a tradition enforced by the Judiciary Committee chairman, the decision on whether or not to move forward ultimately rests with Sen. Chuck Grassley (R-Iowa.).
“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,” Taylor Foy, a spokesman for Grassley, said on Wednesday.
McConnell’s interview Wednesday quickly gained traction with conservatives. Radio host Hugh Hewitt, who has advocated for Republicans nixing the precedent, noted the move would make “every rule of law conservative” happy.
“Long overdue demise of an anti-Constittional [sic] anti-majoritarian ‘tradition,’” he added on Twitter.
Carrie Severino, chief counsel and policy Director for the Judicial Crisis Network, added that “we are thankful for that leadership and look forward to helping him fill the bench with judges who follow the law.”
Republicans are under growing pressure to get rid of the blue slip, as well as shrink the amount of time it takes to get a nomination through the chamber. Trump currently has 149 vacancies to fill in the federal court system, with nominees already named for 50 of those spots.
And with Republicans struggling to make good on their key agenda items — they have, so far, failed to repeal ObamaCare and there are early signs of trouble on tax reform — the courts offer perhaps the best path to the GOP and Trump securing a long-term legacy.
The Judicial Crisis Network (JCN) had been prepared to target McConnell specifically, urging the Kentucky Republican to speed up the chamber’s consideration of Trump’s judicial nominees. But the group said this week, before the Weekly Standard interview was published, that it was holding off after outreach from McConnell’s office.
“The campaign, including the advertising, is in a holding pattern for now because Leader McConnell’s office has reached out and wants to have discussions about how best to proceed in the coming months,” said a spokesperson for the group.
They added that “it’s encouraging to see there is a willingness to sharpen the judicial confirmation strategy. We are hopeful the discussions will bear fruit.”
Conservatives have also clamored for months for Republicans to take action, arguing Democrats were being allowed to use the Senate’s rulebook to obstruct Trump’s nominees.
Grassley has been careful not to tip his hand on the looming fight. But McConnell’s remarks on Wednesday set off alarm bells among top Democrats and allied outside groups.
“The Senate has fewer and fewer mechanisms that create bipartisanship and bring people to an agreement. The blue slips are one of them. It’s just a shame that Sen. McConnell is willing to abandon it for circuit court judges,” Senate Minority Leader Charles Schumer (D-N.Y.) said.
He added that “we hope that Chairman Grassley, who has always believed in the traditions of the Senate, will resist Sen. McConnell’s request.”
A Senate aide noted that Grassley, McConnell, Schumer and Sen. Dianne Feinstein (D-Calif.) sat down after last month’s New York Times article to try to resolve the blue slips issue. Wednesday’s back-and-forth suggests they failed to reach an agreement.
Feinstein, the top Democrat on the Judiciary Committee, ripped McConnell for his comments noting that “the decision about whether to continue to honor the process is not his alone.”
“It’s clear this administration doesn’t respect the role of Congress, which means Republican senators could also be faced with nominees that don’t reflect their own home states,” she said.
It’s not the first time senators have fought over the blue slip. A Congressional Research Service report noted that “since 1979, the impact of negative blue slips has varied as leadership in the Senate Committee on the Judiciary has changed.”
Sen. Patrick Leahy (D-Vt.), a former chairman of the committee, added that it was “not up to McConnell” and that Grassley had made him a promise on blue slips.
“Chairman Grassley has told me he will respect the blue slip tradition, just as I did. I trust him to keep his word,” he said on Wednesday.
Republicans blocked 18 court nominees during the Obama administration by refusing to return their blue slips. Leahy noted that he stuck with the rule “even in the face of significant pressure from within my party to abandon it.”
And every GOP senator, including McConnell and Grassley, sent a letter to President Obama in 2009 warning that if they weren’t consulted, and didn’t approve of, nominees from their home states, they wouldn’t let them move forward.
Democrats specifically point to Kentucky Supreme Court Justice Lisabeth Tabor Hughes, who Obama nominated for the 6th Circuit. McConnell’s office told the Courier-Journal last year that he couldn’t support action on the nomination because the Obama administration hadn’t consulted him.
Democrats now have fewer tools to slow down or block a judicial nominee. They did away with the 60-vote filibuster for lower-court nominees when they held the majority in 2013, and Republicans followed suit by ending the filibuster for Supreme Court nominees earlier this year.
Democratic Sen. Al Franken (D-Minn.) has said he will not return a blue slip for Trump’s nominee for the 8th Circuit, David Stras. JCN, in return, launched an ad against Franken.
And Democratic Sens. Ron Wyden (Ore.) and Jeff Merkley (Ore.) are pledging they will not return their slips for Ryan Bounds, Trump’s 9th Circuit pick, or “any other nominee that has not been selected through our judicial process.”
Grassley noted in late September that he hadn’t made a decision about what to do on circuit nominees where blue slips aren’t returned.
So far the Judiciary Committee has held hearings for 24 of Trump’s nominees, with a hearing for an additional five scheduled next week. And Grassley has argued that the Senate should stay in session longer — including skipping the current week-long break — to get more work done.
“Sen. Grassley has said that he expects Senators and the president to continue engaging in consultation when selecting judicial nominees,” Foy said on Wednesday. “As in the past, any abuses of the courtesy would be addressed on a case-by-case basis.”