Democrats on the Senate Judiciary Committee on Thursday angrily protested Chairman Chuck Grassley’s decision to vote on one of President Trump’s nominees to a federal appeals court position, over objections from a Democratic senator from the nominee’s home state.
Under Senate tradition, home-state senators have had the right to delay or veto nominees before they are taken up in committee, and the process has started only after these senators have returned their “blue slip” on the nominee.
But on Thursday, Grassley’s committee ignored that tradition and approved the nomination of Michael Brennan of Wisconsin to the 7th U.S. Circuit Court of Appeals, in a party-line vote. That vote and last month’s confirmation hearing for Brennan happened even though Sen. Tammy Baldwin, D-Wis., had not returned her blue slip.
Democrats blasted Grassley during the vote for ignoring years of Senate tradition.
“I think the intent to do away with the blue slip on the Republican side is clear. I think it’s a huge mistake and a big mistake for this committee,” Sen. Dianne Feinstein, D-Calif., the committee’s top Democrat, said Thursday. “This is really a hallmark change in how we operate.”
Sen. Patrick Leahy, D-Vt., who previously chaired the Senate Judiciary Committee, accused Republicans of caving to the demands of the White House and said they were sending a signal to senators that they are “irrelevant.”
“Boy oh boy, soon as we’ve got Steve Bannon and a few others down there at the White House, man we’ve got to change this,” Leahy said, referencing Republicans’ actions. “We’ve got to change this tradition.”
Remarking on his time as chairman of the committee, Leahy said there was never a time where he didn’t respect a senator who didn’t return a nominee’s blue slip.
“My concern is not a mere piece of paper,” he said. “My concern is we’re failing to protect the fundamental rights of home-state senators, and we’re failing in our constitutional duty to offer advice and consent.”
While Democrats appeared united in their frustrations toward Grassley for effectively ending the blue slip process, Republicans rebuked their characterization.
Sen. Ben Sasse, R-Neb., said it was “BS” that changes to the judicial nominations process started this year.
“This is the inevitable result of the Reid rule in 2013,” he said in response to comments from Sen. Sheldon Whitehouse, D-R.I. “When you went to simple-majority confirmation of circuit judges, this was inevitable. I think the things you’re lamenting are sad, but you’re pretending it started today. That’s BS.”
Sasse was referring to a rule change made by Democrats in 2013 that allow all nominees to be advanced and approved by the Senate in a simple majority vote. That change means even the GOP’s narrow 51-49 majority in the Senate can approve any of President Trump’s nominees, as long as Republicans stick together.
Sen. Mike Crapo, R-Idaho, agreed with Sasse.
“Today isn’t the day that all this started,” he said. “We’ve had back and forth when the power was all concentrated in one side or the other side. … To say that what’s happening right now is just a brand-new dynamic is not accurate.”
Grassley has rejected accusations that he is completely ending the blue slip process, as some Democrats have asserted, and reiterated Thursday that a lack of two positive blue slips won’t preclude a nominee’s hearing unless the White House fails to consult with the nominee’s home-state senators.
“In the case before us, the White House consulted with both Wisconsin senators,” he said. “The White House considered two candidates suggested by Sen. Baldwin, but the president opted for Judge Brennan. That’s the president’s prerogative under the Constitution.”
Grassley sent a letter to Baldwin last month explaining his reasoning for holding a hearing on Brennan’s confirmation, and noted Thursday that Brennan received bipartisan support from the Wisconsin Federal Nominating Commission.
He also referenced several instances where Leahy declined to hold hearings for federal appeals court nominees despite having returned blue slips from home-state senators. In one case, Grassley said, Leahy declined to hold hearings for three nominees to the 4th U.S. Circuit Court of Appeals who had positive blue slips. In another instance, Leahy decided not to hold hearings for two nominees to the 6th U.S. Circuit Court of Appeals when senators from another state asked him not to.
“As Sen. Leahy demonstrated, a chairman can deny hearings for many reasons, but even you can decline to hold a hearing even when the blue slip has been returned,” Grassley said.
