March 28, 2019

Feinstein Urges Return to Blue Slip Tradition

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today spoke on the Republican decision to disregard the blue slips of home-state senators when considering judicial nominees.

            “Today, there are five judicial nominees on the agenda for the first time. Among these five are two Ninth Circuit California nominees, Ken Lee and Dan Collins, who do not have blue slips from either Senator Harris or myself.

            I’ll discuss Mr. Lee and Mr. Collins in greater detail next week. However, I want to say a few words about a decision to no longer honor the blue slips of home-state senators.

            I take it that without notice or discussion, the blue slip is essentially dead. If not, Mr. Chairman, I hope you will comment. 

            Before President Trump took office, the blue slip had been a Senate practice for nearly one century. And during the past 100 years, before this presidency, the Senate confirmed only five judges with only one blue slip, and the last one was in 1989 – and in 100 years the Senate had never confirmed a judge without two blue slips.

            Further, 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.

            Since President Trump took office, however, Republicans have held hearings for 12 circuit court nominees and voted to confirm seven – seven – over the objection of home-state Democrats.

            We have also seen an escalation in the majority’s willingness to ignore blue slips. On March 7, the committee voted out two nominees to the Second Circuit over the objection of the Senate minority leader.

            And as Senator Harris and I have made clear, we’ve been willing to work from the start with this president to choose consensus, mainstream nominees to the Ninth Circuit.

            There’s simply no basis to argue that Democrats have refused to pick circuit court nominees. And there is simply no basis to ignore blue slips.

            A number of my Republican colleagues on the committee have argued that the 2013 rules changes have led us to where we are today. Respectfully, I don’t see that as the case.

            Republicans blocked over 60 of President Clinton's judicial nominees to keep the seats open for President Bush.

            In addition, the 2013 rules change came after five years of Republican obstruction of President Obama’s judicial nominees. Republicans actually blocked so many of President Obama’s nominees that the number of cloture votes during his first term almost equaled the total number of cloture votes throughout history.

            In addition, Republicans blocked four of President Obama’s nominees to the D.C. Circuit – taking the position that no one could be confirmed to the D.C. Circuit.

            Mr. Chairman, there is no justification for disregarding Democratic blue slips. Democratic senators have made and continue to make good faith efforts to find consensus picks for the circuit courts.

            These are not picks who we would support in a Democratic administration, but that’s not stopped us from engaging with the White House to fill these vacancies.

            This change in practice not only harms the Senate, it harms the federal judiciary. And I wish we could’ve had an opportunity to discuss it. I really believe it’s a mistake.

            One of the things I’ve learned is: what goes around, comes around. I had hoped that we would be able to work in a very cooperative way.”

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