Former Sen. Tom Daschle, D-S.D., wrote a piece on Tuesday reprimanding Republicans for politicizing the judicial nomination process. In his opinion piece, "It's Time to Save the Judicial Confirmation Process," Daschle spoke fondly of the Founders' design, writing:
Our Founders didn't want Congress to be able to grind the gears of government to a halt over political disagreements with the president. But, they also didn't want the president's powers to be absolute and unaccountable. Thus, Article II of the Constitution gives the president the job of nominating judges – but only with the ‘Advice and Consent' of the Senate. This system allows for a federal judiciary insulated from partisan politics so long as the executive and legislative branches engage in the process in good faith.
According to Daschle, the system worked smoothly, including during his 18 years in the Senate, until conservatives undermined the process, first by slow-walking lower-court judicial nominees, and then by refusing to vote on President Barack Obama's Supreme Court nominee, Judge Merrick Garland.
However, the former senator's balanced prose doesn't match the reality of the Democrats' long-standing politicization of the judicial branch, or Daschle's own Senate career. The Democratic Party perfected the politicization process 30 years ago with its blitz against President Ronald Reagan's nomination of Judge Robert H. Bork to the Supreme Court. One of Daschle's first votes upon moving from the lower chamber to the Senate was against that eminently-qualified judge.
Then, there was the attempted high-tech lynching of Justice Clarence Thomas. Daschle voted against his confirmation as well.
More recently, we saw the Democrats' good faith "advice and consent" in the Senate Judiciary Committee's questioning of Professor Amy Barrett's Catholic faith.
So, yes, until recently, the system worked well — for Democrats. They Bork originalists and textualists by branding them extremists and demand Republican presidents appoint "moderate" judges. But as the late Justice Antonin Scalia quipped about the demand for "moderate" judges: "What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean? There is no such thing as a moderate interpretation of the text. The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one."
Conservatives have had enough of "moderate" judges who write the law instead of interpreting it. Judges such as Justice Anthony Kennedy who, under the musical chairs rule of Merrick Garland, sits in what rightfully should have been Justice Robert Bork's seat. Judges who "grow" in office always seem to grow into liberals.
So, no, conservatives did not politicize the process. They just finally learned how the system works.
And part of that system, as Daschle explained in his op-ed, is the blue slip process by which home-state senators confer with the president concerning appointments and then signify their acquiescence to a judicial nominee by turning in a blue slip. Daschle praised that process as making the "nomination process less partisan and more collaborative." In other words, more "moderate."
But President Trump apparently bucked the system when he nominated David Stras to the Eighth Circuit Court of Appeals and Ryan Bounds to the Ninth Circuit Court of Appeals, without the support of their Democratic senators. And Daschle used his opinion piece's finger-pointing to defend Sens. Al Franken, D-Minn., Ron Wyden, D-Ore., and Jeff Merkley, D.-Ore., for refusing to turn in their blue slips for Stras and Bounds. Without the blue slips, these nominees will linger in a legislative limbo, without the Senate Judiciary Committee hearing necessary to send their nominations to the floor for a vote.
That is, unless Republicans decide to follow Harry Reid's lead on nuclear Senate warfare and eliminate the blue slip process, much as Reid eliminated the filibuster for lower-court nominations. On Wednesday, it appeared that Republicans had made this move, with the Weekly Standard reporting that under Senate Majority Leader Mitch McConnell's helm, "[n]o longer will ‘blue slips' be allowed to deny a nominee a Senate Judiciary Committee hearing and vote on confirmation."
But a spokesman for McConnell told the Huffington Post, "McConnell was talking about his own view on blue slips, and was not saying that Republicans won't uphold the rule anymore." The Huffington Post added: "It's ultimately up to Sen. Chuck Grassley, R-Iowa, the Judiciary Committee's chairman, to decide whether to honor blue slips as he schedules hearings for Trump's court picks. So far, he has, and Sen. Patrick Leahy, D-Vt., the panel's former chairman, told the Huffington Post in June that Grassley gave him his word he would keep the rule."
So, at least for now, the blue slips are staying. But I'd advise Grassley to consider the system established by those Founding Fathers, of whom Daschle is so fond: They didn't mention blue slips or a home-state senatorial veto of judicial nominations in the text of the Constitution — or even imply one in its penumbras.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
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