November 29, 2017

Feinstein Speaks in Support of Blue Slip Policy

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today delivered opening remarks at a nominations hearing to defend the blue-slip policy:

“As you know, when my staff first learned of the plan for this hearing, I wrote a letter to you. That letter is dated November the 16th. In my letter, I raised concerns that once again there would be two circuit court judges at a single hearing and that there would be a possible change to how blue slips were going to be treated by the committee.

I asked that you reconsider and that Democrats be treated the same way as Republicans have been treated. I did not—and do not—ask for special treatment or unique consideration.

Rather, I simply asked that the committee follow the same traditions and accommodations that have been in place for over a century.

I’d like to enter into the record the letter I sent to you, Mr. Chairman, on November 16 as well as the letter that all committee Democrats sent to you the following day, November 17.

Unfortunately, the decision was made to change the committee’s blue-slip policy. Although I had asked in writing about this hearing and possible changes to the blue slips on multiple occasions, I was not alerted in any way about your decision to end a 100-year policy without any notice to this side of the committee.

Specifically, on Thursday, November 16, in the late afternoon when I and most members were heading for planes home for the Thanksgiving holiday, the announcement was made on the floor of the Senate.

That very morning, within this committee, we discussed how the committee was going to handle FBI background investigations. Perhaps, as a gesture, you could have announced your decision then so that the move could have been discussed and debated here in the committee. But we were not given a chance to respond until now.

So today, I need to say the following:

As each member of the Senate recognizes, the states we represent are diverse. The blue slip was instituted to ensure that those nominated for lifetime appointments reflect our home states’ particular needs as well as the legal bar in our communities. What’s more, the blue slip encourages meaningful collaboration and consultation between the White House and a state’s senators.

All Senate Republicans wrote a letter in March 2009—just two months into the Obama administration—which stated, “If we are not consulted on, and approve of, a nominee from our states, the Republican conference will be unable to support moving forward on that nominee.”

The only difference between then and now is who sits in the White House.

In fact, when Senator Leahy was chairman of this committee, under both President Bush and President Obama, the blue slip was honored equally. If a judicial nominee did not have two blue slips from their home-state senators, that nominee did not move forward. The nominee never received a hearing.

This was also the policy the first two years when Chairman Grassley took over the committee.

In 2015 and 2016, there were nine judicial nominees—four circuit court nominees and five district court nominees—who did not have blue slips from home-state senators. None of them received a hearing.

Again, what’s troubling is that the only difference is who sits in the White House.

There is no pattern of obstruction. The Trump administration has been in office for less than one year. No president has had as many circuit court nominees confirmed in their first year since Richard Nixon—and that is fact.

Of the nine circuit court nominees that have been confirmed, all had their blue slips returned and five were from Democratic senators.

The Democrats on this committee are simply asking for blue slips to be respected, just as they were for Republican senators.

Or said another way, all we ask is to be treated the same way in the Trump administration as Republican senators were treated in the Obama administration. No more, no less.

Now let me now return to the nominees being considered at today’s hearing. Justice David Stras is a justice on the Minnesota Supreme Court.

I would note that last year, there were two state Supreme Court Justices—Lisabeth Tabor Hughes from the Kentucky Supreme Court, and Myra Selby of the Indiana Supreme Court—nominated to circuit court positions who were never before this committee because one or both of their home-state senators did not return blue slips.

In addition, the committee is considering Kyle Duncan’s nomination to the Fifth Circuit. My understanding is that Mr. Duncan has worked on a significant number of high-profile cases.

For example, as the general counsel for the Becket Fund for Religious Liberty, Mr. Duncan worked to undue a provision of the Affordable Care Act that requires employers to provide health insurance with contraceptive coverage for their employees.

Specifically, he was the lead lawyer for the Hobby Lobby company and argued that corporations had the same First Amendment rights that individuals did—that corporations could impose their religious beliefs on employees by denying female employees access to preventative health care, including insurance coverage for contraception.

Mr. Duncan also filed a brief in favor of Texas laws restricting abortion access. One law would have required doctors that provide abortions to have admitting privileges at a hospital within 30 miles, and another law would have required any clinic that provides abortions to meet the standards of an ambulatory surgical centers.

The American Medical Association and the American College of Obstetricians and Gynecologists opposed these laws as medically unnecessary. Additionally, these laws would have caused 75 percent of the abortion clinics in Texas to close. The Supreme Court rejected Mr. Duncan’s views and held that each of these laws “constitute[d] an undue burden on abortion access, and each violates the Federal Constitution.”

Mr. Duncan also argued against marriage equality for LGBT individuals and represented a Virginia court clerk who refused to issue a marriage license to a same-sex couple.

Mr. Duncan defended North Carolina and Texas laws which made it more difficult for eligible citizens to vote. In fact, the Fourth Circuit held that the North Carolina law targeted African American voters “with almost surgical precision.”

What is telling about Mr. Duncan’s record is how he has been a zealous advocate for many, many social issues. I think his record raises questions as to whether he can be impartial and follow Supreme Court precedent—even when he disagrees.

The committee has already received letters from several groups regarding Mr. Duncan’s nomination, including a letter of opposition from 35 LGBT groups who argue that, “In light of his words and actions, it is quite unfathomable that Mr. Duncan would administer justice equally to litigants of various racial backgrounds, and all genders and sexual orientations.”

Thank you, Mr. Chairman.”

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