March 07, 2019

Feinstein Speaks on Blue Slips, Ninth Circuit Nominees

 Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today spoke out against Republican efforts to ignore the Senate blue slip tradition and the White House nominees for the Ninth Circuit:

            “Today the committee will be considering five judicial nominees – three for the district court and two for the Second Circuit. I want to start by discussing nominees to the Second Circuit in New York – Joseph Bianco and Michael Park – who do not have blue slips. This is a fundamental situation now. They do not have blue slips from their home state senators, including the minority leader, Senator Schumer. This has never happened before.

            In the past century, before President Trump took office, only five judges in history had been confirmed with only one blue slip, and the last one was in 1989. What I find even more telling is that no Democratic majority has ever held a hearing or confirmed a judicial nominee over the objection of a Republican senator who refused to return a blue slip –never, never, never has it happened. This has never been done in 100 years.

            Yet in just the last two years, Republicans held hearings for 10 circuit court nominees and voted to confirm four over the objection of home-state Democrats.

            Just last week the Senate voted to confirm Eric Miller to a Ninth Circuit seat in Washington state over the objections of Senator Murray and Senator Cantwell. And this week, the Senate is voting on two Sixth Circuit nominees from Ohio who do not have a blue slip from Senator Brown.

            Despite the repeated objections of Democratic senators on and off the committee, the majority continues to move forward with nominees who lack home state support. And today is no exception. The committee is moving forward with the nominations of Mr. Bianco and Mr. Park even over the objection of the Senate minority leader. 

            Mr. Chairman, I’d like to sit down with you and have an opportunity at the very least to learn about these changes before they appear in action and at the very worst to have an opportunity to present our side’s point of view.

            We know that consultation with home state senators can produce positive outcomes. And there are numerous examples – even in the Trump administration and even with Democrats. 

            For instance, last year, New York senators worked with the White House on the nomination of Richard Sullivan to a New York Second Circuit seat. Both senators returned their blue slips and Mr. Sullivan was confirmed with broad bipartisan support. This should be the rule, not the exception.

            I’m also concerned that the failure to uphold the blue slip has led to nominees who don’t even live in the state they’re being nominated to fill – as was discussed in our last markup. This has never happened before, at least since I’ve been on the committee.

            Mr. Chairman, the president recently announced three nominees to the Ninth Circuit in California.

            One of these nominees, Daniel Bress, was born in California but practices law in Washington, D.C., and lives in Virginia. In fact, since graduating from high school, Mr. Bress has only lived in California for one year and has been on the east coast for college, law school and the rest of his legal career. 

            Given California’s demographics and the high quality of its educational institutions – and given California’s centrality to the Ninth Circuit – I don’t understand why the White House would choose someone with such a limited connection to the state.

            We have 40 million people. We’re bigger than 22 states and the District of Columbia combined. I find it hard to believe the administration could not identify one single Californian that was suitable for this position.

            Moreover, Senator Harris and I were asked by the White House if we would support another individual on its list for this seat, which we agreed to do, and still the White House chose Mr. Bress. We also agreed to support other candidates from the White House’s list, not from our preferred list, and still the White House chose to move forward with a nominee who does not live in California.

            I hope others will support me. I am going to vote ‘no’. I’ve been on this committee a long time. I’ve never been treated this way, Mr. Chairman, never been treated this way through other administrations. It’s just not right. And maybe the only way we can show it is with a ‘no’ vote.

            I also want to briefly discuss a Second Circuit nominee, Michael Park. As an attorney in private practice, Mr. Park has advanced legal positions opposing the Affordable Care Act, opposing women’s reproductive rights, opposing affirmative action, opposing environmental protections and opposing immigration.

            In 2018, as a lawyer in private practice, Mr. Park represented the state of Kansas after it terminated Planned Parenthood’s eligibility to receive Medicaid funds. Mr. Park justified the denial of funds in part by concluding that Planned Parenthood had engaged in ‘unethical’ behavior, such as objecting to warrantless searches of their medical facilities.

            This argument is disturbing, not because he defended the state’s decision to cut off funding – I know members of this committee disagree on that issue. However, we should all agree – regardless of party – that the government should not engage in warrantless searches of any business, whether it’s a business we support or don’t.

            Mr. Park also argued to change the standards for evaluating when a woman can exercise her constitutional right to privacy, which includes making her own health care decisions. Mr. Park would have denied an undocumented teenage girl in government custody her right to access reproductive care.

            Mr. Park is also a vocal critic of affirmative action programs. He has argued against affirmative action programs in three different lawsuits and in his personal capacity. He argued against the use of race as a factor in college admissions, claiming it was ‘unnecessary to use race to enroll a diverse student body.’

            I am concerned in light of Mr. Park’s advocacy that he will not be able to serve as a fair and impartial trier of fact.

            Mr. Chairman, I hope you will reconsider this arbitrary, continued departure from the blue slip tradition and reinstate the blue slip for circuit court nominees.

            I will be opposing the nominations of Mr. Bianco and Mr. Park because they lack support from Senator Schumer and Senator Gillibrand, and I urge the other Democrats to do so as well.

            We have to stand up or we’re going to get wiped out. And additionally, because I have serious concerns about Mr. Park’s record, I urge all of my colleagues to do the same.”

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