How Ending the Blue Slip Damaged the Federal Courts Forever

By Al Franken, Democracy Docket

26 August 21

 

hen journalists write about the Republican takeover of the federal courts, they tend to focus on three events. 1) Harry Reid going nuclear in 2013. 2) Mitch McConnell blocking Merrick Garland. 3) Candidate Donald Trump promising just weeks before the 2016 election to choose Supreme Court nominees solely from a shortlist provided by The Federalist Society and The Heritage Society.

What they leave out is 4) McConnell, White House Counsel Don McGahn and Senate Judiciary Chairman Chuck Grassley ending the blue-slip policy.

Quickly – The first three. 1) Reid and 51 others of us in the Democratic caucus went nuclear in November 2013 because McConnell had filibustered as many of President Obama’s executive and judicial nominees as had been filibustered previously in the entire history of the nation. On the executive side, Republicans had stopped Obama from filling even critical national and domestic security positions. On the judicial side, the most egregious example of McConnell’s obstruction was his refusal to allow votes on three Obama nominees to the D.C. Circuit of Appeals — the nation’s second most important court. A number of moderate Democrats begged Republicans to recreate the Gang of 14, named for the seven moderate Republicans and seven moderate Democrats who had agreed in 2005, to put through all but Bush’s most extreme judges, in order to prevent Republicans from going nuclear. But in 2013, when Reid met with McConnell, Mitch refused, and we pushed the button.

2) Senate Republicans won the majority in the 2014 midterm. When Justice Antonin Scalia died on February 13, 2016, President Obama nominated Merrick Garland, Chief Judge of the D.C. Circuit, for the vacant seat. McConnell instructed his caucus not to take up Garland in the Judiciary Committee or even meet with him. This unprecedented move, McConnell insisted, was based on the so-called Biden Rule, which he claimed that Senator Biden, as Chairman of the Judiciary Committee, had laid down in June of 1992. Biden, McConnell maintained, had announced that the Senate would not take up any nominee for the Court in a presidential election year. Except Biden hadn’t said that at all. What Biden had actually said was that if a Justice retired after that year’s Supreme Court session, which was about to end, he would take up a nominee, but only if President George H.W Bush nominated a moderate or if Bush consulted with committee Democrats first.

The difference? Justice Scalia didn’t resign in July to allow his party’s president to nominate a much younger successor. No. He died. In February. Also, Garland was known not just as a moderate, but as a universally respected consensus-builder on the D.C. Circuit. And President Obama had consulted with Senator Orrin Hatch, the senior Republican on Judiciary, who publicly went on record immediately after Scalia’s death to say that Garland would be a great choice to replace the late justice.

Nevertheless, Republicans blocked Garland, and the seat was held open until President Trump nominated Neil Gorsuch to fill it. All of it was, of course, bunkum. Horse bunkum. Amy Coney Barrett was seated just nine days before the 2020 election.

3) Gorsuch, Brett Kavanaugh, and Coney Barrett are all Federalist Society members —an organization of now-60,000 conservative, libertarian and some genuinely right-wing-nutcase lawyers and jurists (see below), and law school students founded in the 1980’s to counter what they considered the liberal bias of the federal courts. Funded by the likes of the Scaifes and the Kochs, The Federalist Society had by 2016, already successfully seeded the federal courts with Hundred Percenters, Federalist Society members who had been tracked through law school and beyond, rewarding those who never strayed from Federalist Society doctrine with clerkships, jobs at prestigious law firms, judgeships and, of late, seats on the Supreme Court.

Arguably, the most important moment of Donald Trump’s 2016 campaign was when he pledged that he would choose a Supreme Court Justice to replace Scalia from a shortlist supplied by The Federalist Society and The Heritage Foundation. Evangelicals had been wary of the thrice-married, locker-room banterer, but were now assured that he would appoint only judges who were hostile to abortion rights.

With Trump in the White House and Republicans holding the majority in the Senate, they were now free not just to fill the SCOTUS vacancy, but to stack the federal circuit and district courts. But there was only one thing stopping them from filling every existing and new vacancy with a Hundred Percenter. The blue slip.

What’s the blue slip? It’s a form. On blue paper. Since 1917, home-state senators could either turn in their blue slip, showing that they approved a district or appeals court nominee for their state’s slot on an Article Three court, or they could withhold their blue slip to block a nominee they opposed. The blue slip served a number of purposes, which both parties had repeatedly affirmed. Both Grassley and Pat Leahy, his Democratic predecessor as chair, recognized the critical role the blue slip played in ensuring that presidents respect the Senate’s constitutional obligation to provide “advice and consent.”

When Grassley took the gavel in 2015, he wrote an op ed in The Des Moines Register. The blue slip, he wrote, is designed to encourage “consensus between the White House and home-state senators,” and he committed to following Senator Leahy’s approach to the blue slip.

“…over the years, Judiciary Committee chairs of both parties have upheld a Blue-Slip process, including Senator Leahy, my immediate predecessor, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.”

Except he didn’t.

Not long after Trump took office, I got a call from Don McGahn. Minnesota’s seat on the 8th Circuit Court of Appeals had opened. I had expected the call because that’s what White House counsels do when a state’s seat on the federal judiciary opens up – consult with the state’s two senators. But, in retrospect, this wasn’t a consultation. McGahn told me that they were very strongly considering Minnesota Supreme Court Justice David Stras for the 8th Circuit seat. I said, “No.” Stras had been on the very first Federalist Society shortlist for the Supreme Court. I’d be happy, I told him, to put an advisory committee together of respected lawyers and jurists in Minnesota and pick a consensus candidate who was well-respected by everyone in the state. Oddly, McGahn seemed to ignore my offer and asked me to keep my mind open and read some of Stras’ decisions. I said, “Okay. I will do so. But I’m telling you it’s very doubtful that I’m going to hand in my blue slip on anybody on that shortlist.”

So, acting in good faith, I read a few of Stras’ Minnesota Supreme Court decisions and a number of articles he had written which confirmed my doubts. Stras had clerked for Justice Clarence Thomas, and strongly associated himself with Justice Thomas’ extreme views in his writings. In one article he characterized important civil rights issues like school integration and LGBT issues as “contentious,” and described gay people using the term “homosexual,” well after that term had become widely understood to be disparaging.

In 2010, Justice Stras associated himself with Justice Thomas’ dissent in Grutter v. Bollinger, the Supreme Court case that upheld the constitutionality of the University of Michigan Law School’s admissions process, characterizing the law school’s efforts to improve diversity within its student body as “racial discrimination.”

Neither Stras’ scholarship nor his level of experience as a state Supreme Court Justice were in question. But neither was my certainty about the fate of my blue slip. The next time I spoke to McGahn I told him as much. This time he insisted that I meet with Stras. Which I did. Again, in good faith. It was a very cordial visit. I actually liked him. But the meeting did nothing to change my mind. In the next call, McGahn told me that President Trump was going to nominate him anyway. “Well, I’m not turning in my blue slip,” confident that Chuck Grassley, like so many of his Republican colleagues, was a man of his word.

Meanwhile, Michigan’s two Senators, Debbie Stabenow and Gary Peters, were in much the same boat. McGahn had told them that Trump was going to nominate Joan Larsen for Michigan’s 6th Circuit seat. Larsen, too, had been on the first Federal Society SCOTUS shortlist. I assumed they would hold firm, but when news got out that the Michigan senators had caved, I realized that Minnesota was next.

My senior Senator, Amy Klobuchar, had announced her support for Stras. The 8th Circuit was already conservative, she reasoned, and this would leave a vacancy in the Minnesota Supreme Court that our Governor, Mark Dayton, a Democrat, would fill. Also, every member of that Court had given Stras their endorsement, including Justice Alan Page, the beloved ex-Viking tackle and NFL Hall of Famer. I chalked that up to collegiality. On the other hand, a number of the top legal minds in Minnesota had written me with the same objections that I had. As much as I respect Amy, I just could not approve of this guy. She may have been a partner at Walter Mondale’s law firm and Hennepin County District Attorney. But I had played a lawyer in a sketch.

Next, Chairman Grassley insisted on coming to see me in my office. Preceding him were two letters – one from his judiciary staff and a personal one from him. Both letters had assumed that I had opposed Stras only because he had clerked for Thomas. Grassley’s letter complained that I was “grasping at straws” to oppose him. He also wrote that “a Blue Slip is not a veto on a nomination.”

Well, actually, it was. Or had been for over a hundred years. When Alabama Senator Richard Shelby had refused to return the blue slip for the nomination of Judge Abdul Kallon for the 11th Circuit, he said, “a Republican President will do a lot better job. I don’t want somebody selected by President Obama getting a lifetime appointment here in Alabama.” That seat remained vacant until President Trump named a nominee, who was quickly processed by Grassley’s Judiciary Committee and confirmed. Sounds like a veto to me.

That had been the case with Obama nominees blocked by Shelby’s Alabama colleague Jeff Sessions, McConnell and Rand Paul of Kentucky, John Cornyn and Ted Cruz of Texas, Pat Roberts and Jerry Moran of Kansas and others, even though the Obama White House had consulted with them, some over the course of years. And still, obvious as it was that many of these Republicans were operating in bad faith, Chairman Leahy honored his commitment to the blue slip.

When I met with Chairman Grassley, I told him that I had not been consulted and that I had read Stras’ opinions and articles and found them disqualifying. All this seemed to be news to him. Nevertheless, a few days later, McConnell announced that Stras would get his hearing and, no doubt, be confirmed. The blue slip was history. Thus started a parade of judges who, in many cases, held not just extreme, but kooky views. McConnell’s choice to fill the 6th Circuit seat was John Kenneth Bush, an avid blogger who had pushed out birther propaganda citing WorldNetDaily, a known source of wildly false news stories. Watch me question him here and let me know if you think this guy belongs anywhere near a courtroom. It also didn’t hurt that Bush’s wife had helped raise $14 million for McConnell’s 2014 reelection campaign.

We also saw nominees who had the rare distinction of receiving unanimous “not qualified” ratings from the American Bar Association. One after another the federal courts were filled with judges who thought that “a good way to avoid date rape is to stay reasonably sober,” that gay judges should recuse themselves from any cases involving same-sex marriage, that claims of sexism are “irrelevant pouting” and that minors should not have access to contraception.

These were judges that filled the vacancies left open by Republican Senators who had refused to turn in their blue slips for Obama nominees and the scores of other vacancies that Republicans refused to fill after they took the majority in the 2014 midterm. All in all, that gave Trump 105 additional judgeships to fill, which Trump called “a gift,” suggesting that “maybe [Obama] got complacent.” Was Trump being stupid or dishonest or both? One never knows.

One after another, judges that would not have been seated had Chairman Grassley honored the blue slip, (and his word), have cast deciding votes that have resulted in repugnant outcomes.

John Bush, Joan Larsen and four other Trump judges on the 6th Circuit from states with Democratic Senators cast deciding votes in a 9-7 ruling that reversed a preliminary injunction, effectively upholding, a restrictive Ohio abortion law that bans and makes it criminal for doctors to perform abortions if they have knowledge that the woman “includes a Down Syndrome diagnosis in her decision-making process.”

Judge Steven Menashi, a Trump judge who filled New York’s vacancy on the 2nd Circuit, wrote a decision reversing a district court and upholding Trump’s Bureau of Alcohol Tobacco and Firearms refused to provide information to a gun safety group on suicides committed with firearms pursuant to a request by the group under the Freedom of Information Act.

Two Trump-appointed 5th Circuit Judges, Don Willett and James Ho, cast the deciding votes in June Medica v. Gee to reverse a district court injunction against a Louisiana law that would have imposed the onerous and medically unjustified requirement that doctors performing abortions have nearby hospital admitting privileges. The district court had found that as a result of the law, there would be only “one provider and one clinic” in the entire state that could perform abortions and had concluded that “a substantial number” of Louisiana women – 70 percent of those who choose to seek abortion – would be unable to obtain one in the state. The requirement was almost identical to a similar mandate passed by Texas that was struck down in a 5-3 vote by the Supreme Court in 2016 in Whole Women’s Health v. Hellerstadt. Not surprisingly, the Supreme Court also struck down the 5th Circuit’s decision in June Medical. Willett and Ho had each filled seats that had been left vacant by Cruz and Cornyn’s abuse of the blue slip privilege.

And 8th Circuit Court Judge David Stras wrote a 2-1 opinion in Telescope Media Group v. Lucerno that overruled a district court and ruled that a video company could violate Minnesota’s anti-discrimination law and refuse to provide services to same-sex couples based on the owners’ religious beliefs.

What, then, is the damage done to the future of the federal judiciary by the elimination of the blue slip?

First off, these extreme and, in not a few cases, woefully unqualified, judges will be around for another thirty, forty years. Litigants will also have good reason to know exactly how these judges will rule. All of which undermine confidence in the federal judiciary.

And there is no way the blue slip comes back. Nor should it. Yes, the Biden White House may well extend that courtesy to Democratic senators, but certainly not to Republicans. There is little question that President Biden will restore the standards formerly used to nominate judges, but going forward, litigants will know with far more certainty the biases of judges, depending on which president nominated them.

The diminished trust and respect for the judiciary is yet another weakening of the fabric of our democracy. At a time when we are more divided than we have been since the Civil War, and distrust in Congress and the White House have been seriously eroded – when the Capitol has been literally assaulted by a mob intent on overturning the presidential election, when disinformation flows freely on the internet and radio and TV, the federal judiciary should provide be a bulwark against the unraveling of our democracy. Some may argue that it held up in the court battles over the 2020 election results. But those cases were so insanely obvious as to be laughable.

Donald Trump, Mitch McConnell, Chuck Grassley, Don McGahn and the many other Republicans who failed to act in good faith have put our democracy and our nation in serious jeopardy.