January 24, 2018

Feinstein on Grassley Decision to Ignore Baldwin Blue Slip: “I Really Object To This”

WashingtonSenate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today delivered opening remarks at a judicial nominations hearing:

“I think, as members know, the committee is holding a hearing for a nominee who lacks a blue slip from one of his home-state senators. Now I’ve reviewed the history, and I realize that the blue slip is not a rule of the Senate or this committee. It is not a formal policy.

However, it is a tradition of honoring the members of a state from which judge is nominated. It has existed for 100 years. For those in the audience that don’t know, this is what a blue slip consist of. It is a simple blue piece of paper. There’s a brief memo from the chairman and it says ‘To the chairman, I approve or I oppose.’ And then the senator writes in the name and sends that in.

The tradition has been that the blue slip has been honored and I will point out some of that in my remarks.

Each member of the Senate recognizes the states we represent are diverse. The blue slip was actually put in place in in 1917 to ensure that those nominated for lifetime appointments, as I said, reflect our home states’ particular needs and the legal bar in our communities.

What’s more, because the blue slip has been honored for decades, there’s been meaningful cooperation and consensus on nominees. The blue slip has allowed senators to provide valuable insights into nominees whose decisions will directly impact our constituents.

It’s been argued that not every chairman of the Judiciary Committee honored the blue slip as an absolute veto. For more than a decade, Chairman Leahy did.

In fact, since its inception, the Democratic chair of the Judiciary Committee has never, ever held a hearing for a judicial nominee over the objection of a Republican Senator.

I want to emphasize that. The Democratic [chair], when in majority, has never, ever held a hearing for a judicial nominee over the objection of a Republican senator.

A couple of examples: Chairman Ted Kennedy held a hearing for just one nominee, James Sheffield, Eastern District of Virginia, over the objection of a home-state Democratic senator.

Chairman Joe Biden held a hearing for just two nominees, Vaughn Walker, Northern District of California, and Bernard Siegan, Ninth Circuit, over the objection of a home-state Democratic senator.

This is important. Republican senators’ blue slip objections have always been respected by the chairs of this committee.

 President Trump has been in office a little over a year, and already, this committee is holding its second hearing for a nominee without a blue slip from a Democratic home state senator. I really object to this.

Senator [Baldwin] has come in and spoken with me. I know she has spoken with you. She appears grievously injured by this. She has worked with, what I understand, is a very fine screening commission with Senator Johnson in the state, and is deeply concerned that this action has been taken.

I recognize the majority party has a great deal of power. Their voice is dispositive. But the Senate, unlike the House, has preserved strong rights for those in the minority, and the blue slip has been one of these traditions. It appears this is no longer the case.  

Our colleague, Senator Baldwin from Wisconsin, has made clear, as I said, both to me and to the chairman that she’s not asking for special treatment. She’s asking that her blue slip be respected in the same manner as was done for her Republican colleague.

In 2010, President Obama nominated Victoria Nourse to this exact vacancy. She received blue slips from Senators Kohl and Feingold.

However, a few months later, when Senator Feingold was replaced by Senator Johnson, Senator Johnson did not return his blue slip. As a result, Ms. Nourse never had a hearing, and her nomination was eventually withdrawn.

That is the prerogative of every senator. But what is sauce for the goose is sauce for the gander.

It’s also ironic that Mr. Brennan himself publicly defended Senator Johnson’s decision not to return a blue slip on Ms. Nourse’s nomination.

Mr. Brennan wrote in 2011, “There are now two senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move…. In the same way [Senators Kohl and Feingold] have had their say in Nourse’s first nomination, Johnson should have his say.

In this case, I understand that Wisconsin has a bipartisan Federal Nominating Commission that evaluates judicial nominees.

This committee, which both Wisconsin senators participate in, announced in February 2017 that it would begin accepting applications for this Seventh Circuit vacancy on March 15, 2017. This is the same day that Mr. Brennan interviewed at the White House.

Senator Baldwin has expressed her concern that the White House had predetermined who it was going to nominate, without the input of the bipartisan Federal Nominating Commission, nor the input of Senator Baldwin. We object to this.

This leads us on this side to the nominee we have before us, Mr. Brennan. We have questions for Mr. Brennan today regarding troubling views he has expressed on the importance of precedent, or what’s called stare decisis. This is a nominee who has written, for example, that ‘Bush-appointed judges cannot accurately be labeled as activists for reexamining and following only correct precedent.’

I think my Republican colleagues would be quite skeptical if a Democratic president nominated someone who had written that judges need only follow precedent they had decided was ‘correct.’ And I have other questions for Mr. Brennan as well, including his views on habeas rights and executive power, workplace discrimination, and other items from his background.

But Mr. Chairman, I find it really very hard, and particularly for a woman senator who has tried so hard, who has worked with her state commission, for her view to be rebuffed in this manner.”

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