Grassley: Dems Regret Filibuster Fallout

 

Mr. President, this week the Senate will vote on the nomination of Michael Brennan to serve on the Seventh Circuit Court of Appeals in Milwaukee. Judge Brennan is a highly qualified nominee with broad bipartisan support in his home state of Wisconsin. The Senate Judiciary Committee received numerous letters in support of Judge Brennan’s nomination, including from the longtime Democratic Milwaukee District Attorney. I fully support his confirmation. 

 

I’ve heard from some of my colleagues on the other side of the aisle that they believe Judge Brennan shouldn’t have received a hearing in the judiciary committee. They say this because one senator from Wisconsin didn’t return her blue slip. But their opinions are based on an incorrect understanding of the blue slip’s history.

 

As I explained last year on the Senate floor, the blue slip courtesy is just that: a courtesy. Since 1917, chairmen of the judiciary committee have distributed blue slips to home-state senators to get feedback on nominees to the federal bench in their states. Chairmen have applied the blue slip courtesy differently in its 101-year history. For the first 39 years of its existence, the blue slip had no bearing on whether a nominee went through the Committee process.

 

In 1956, however, Senator James Eastland became chairman. He started requiring both home-state senators to return positive blue slips before the committee would proceed on judicial nominations. Scholars maintain that Chairman Eastland adopted this policy to allow southern senators to veto nominees sympathetic to the Supreme Court’s decision in Brown v. Board of Education.

 

When Senator Ted Kennedy took over the chairmanship in 1979, he went back to the original blue slip policy. Chairman Strom Thurmond continued that policy. Then Chairman Joe Biden. And Chairman Orrin Hatch followed. Under their policy, negative or unreturned blue slips did not necessarily preclude a hearing for a nominee.

 

When Senator Leahy became Chairman during the Bush Administration, he did away with this policy and resurrected Chairman Eastland’s strict blue slip policy. And the reason for this strict blue slip policy was obvious to everyone, at least on this side of the aisle—to block President George W. Bush’s judicial nominees based on politics and ideology.

 

In sum, only two of my eighteen predecessors who extended the blue slip courtesy required sign-off from both home-state senators.

 

When Senator Leahy adopted an ahistorical blue slip policy, that was his prerogative as chairman. But it’s my prerogative to have the same blue slip policy as Chairmen Biden and Kennedy and the vast majority of my predecessors. Accordingly, I have said that negative or unreturned blue slips will not necessarily preclude a hearing for circuit court nominees unless the White House failed to consult home-state senators.

 

That is why I held hearings for David Stras, Kyle Duncan, Michael Brennan and Ryan Bounds despite the lack of two positive blue slips from home-state senators. This policy is completely bipartisan—I’ve applied it to blue slips of Democratic and Republican senators.

 

Some people have suggested that I had a different blue slip policy during the final two years of President Obama’s Administration. They’ve pointed to nine judicial nominees with blue slip problems who didn’t receive hearings.

 

But five of these nominees were to district courts, and I’ve said repeatedly that I’m less likely to proceed on district court nominees without two positive blue slips. 

 

With respect to the four circuit court nominees who didn’t receive hearings, their nominations simply came too late in the Congress to process. They were nominated in 2016, a presidential election year.  In presidential election years, the Leahy-Thurmond Rule applies. Under the Leahy-Thurmond Rule, the Senate typically stops confirming judges by mid-summer.

 

Assuming I gave senators in 2016 the same timeline as I gave former Senator Franken to return his blue slip for Justice Stras, we wouldn’t have started holding hearings until July 2016. The Leahy-Thurmond Rule would’ve barred their confirmations. These four nominees also lacked floor support, and it would’ve been a waste of time and resources to proceed. That was my judgment as chairman.

 

Chairman Leahy similarly refused to hold hearings for at least six circuit court nominees for reasons besides blue slips. He denied hearings to three nominees to the Fourth Circuit—Steve Matthews, Robert Conrad and Glen Conrad. These nominees had two positive blue slips from their home-state senators, and two were nominated more than a year before the 2008 presidential election. But then Chairman Leahy refused to process them.

 

Chairman Leahy also refused to act on the nomination of Peter Keisler, President Bush’s nominee to the D.C. Circuit, who was nominated in 2006. Obviously, blue slips were not the reason for my predecessor’s decision to stall Mr. Keisler’s nomination for more than two years, since the District of Columbia has no senators. These decisions allowed President Obama to stack the D.C. Circuit and Fourth Circuit with liberal judges.

 

Chairman Leahy also declined to hold hearings for two Sixth Circuit nominees to Ohio seats, even though both Ohio senators had returned positive blue slips. The Democratic senators from Michigan asked Chairman Leahy to halt proceedings on all Sixth Circuit nominees. Chairman Leahy honored this request and denied a hearing to the Ohio nominees. This was the first time ever a chairman allowed senators to halt Committee proceedings on nominees for seats in other states.

 

As Chairman Leahy’s example shows, there are multiple reasons for a Chairman to deny a hearing to a nominee. Likewise, my decision not to hold hearings for the four nominees in 2016 wasn’t based solely on the lack of blue slips. It’s simply false to say I changed my blue slip policy since that time.

 

As to my decision to hold a hearing for Judge Brennan, I was satisfied that the White House adequately consulted with both Wisconsin senators. The White House sought input from the Wisconsin senators and considered all the candidates recommended by each senator. I understand the frustration that Wisconsin’s judicial nominating commission hasn’t worked out as planned. But Judge Brennan was the only candidate to receive bipartisan support from the commission. Moreover, the commission’s dysfunction can’t be used to deny the President his constitutional authority to make judicial nominations.

 

I’d also like to point out that each senator who has withheld a blue slip this Congress also voted to abolish the filibuster for judicial nominees back in 2013. The argument then was that 41 senators shouldn’t be allowed to block the will of the majority. But now they’ve reversed themselves, saying one senator should have that right.

 

I won’t allow the blue slip to be abused in this way. The blue slip is meant to encourage consultation between the White House and home-state senators. It’s not a way for senators to have veto power over nominees for political and ideological reasons.

 

Finally, I hear a lot these days about the President “stacking the courts” or the Senate “rubberstamping nominees.” Well, I stand by our process. It gives senators every opportunity to probe deeply into a nominee’s background. As five nominees from last year will attest, not everyone makes it through this rigorous scrutiny.

 

I’d like to bring attention to two recent court decisions that the Trump Administration lost. In Sessions v. Dimaya, the Supreme Court held that the government could not deport an immigrant under a vague statutory provision. The pivotal vote was cast by President Trump’s own Supreme Court nominee, Justice Neil Gorsuch.

 

In Chicago v. Sessions, the Seventh Circuit held that the government could not deny funding to so-called “sanctuary cities.” The three judges were all appointed by Republican presidents.

 

I bring up these cases not because I agree or disagree with their outcomes, but to point out that fears of the President “stacking the judiciary” are overblown. Conservative judges apply the law as written, regardless of the results. But I suppose liberals expect their judges to be results-oriented, and that is why we can always confidently predict how a liberal judge will rule on a case. Liberal outside groups’ real fear is that newly confirmed judges recognize that their role is to neutrally apply the law, not legislate from the bench.

 

I yield the floor.

 

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