There has been national attention to a local squabble in Minnesota over the appointment of state supreme court associate justice David Stras to a federal appeals court by President Donald Trump.
According to recent tradition, the senators from the nominee’s home state might block the appointment by refusing to turn in a “blue slip” to the chairman of the Senate Judiciary Committee.
Justice Stras is one of the most respected jurists in the state, and he has been publicly endorsed by numerous prominent judges and lawyers of both political parties. The obstacle to his confirmation is that both U.S. senators from Minnesota are Democrats (called the Democratic-Farmer-Labor Party or DFL here), and Justice Stras is a conservative nominated by the Republican president.
Quite young (43) for a judge of his stature, he was one of 11 judges listed by candidate Trump as potential choices for the U.S. Supreme Court in 2016. A strong conservative, he nevertheless has a record for fairness and open-mindedness.
The junior Minnesota senator, Al Franken, reportedly is miffed he was not consulted on the nomination by the Trump administration, has refused to send in his blue slip, and he has come out against Justice Stras, citing the nominee’s conservatism. While this might be a justification to vote “no” for confirmation, it is considered a lame excuse to withhold the blue slip, thus preventing the nominee a vote by the full Senate.
The senior Minnesota senator, Amy Klobuchar, is up for re-election in 2018. She initially expressed reservations about the nomination, but after interviewing Stras and observing the outpouring of bipartisan support for him, she reportedly has sent in her blue slip. In doing so, however, she publicly assumed that Senator Franken’s veto doomed the nomination.
In fact, it likely does not.
That is because there is a another little-known Senate procedure known informally as the Biden-Hatch-Kennedy rule (named after three former chairman of the judiciary committee) that enables the chairman of the Senate Judiciary Committee—in this case, Iowa Republican Senator Chuck Grassley—to ignore one of the home state senator’s actions if the other senator turns in his or her blue slip. This rarely used procedure was created to resolve situations such as this one, and Senator Franken’s pettiness could well cause it now to be invoked.
But even if the rule mentioned above did not exist, Grassley can simply ignore or discontinue the blue slip tradition, and send the nomination to the full Senate for a vote because the blue slip “veto” is only an informal tradition and not a formal Senate rule.
This case obviously could also have consequences for the foreseeable future of the federal judiciary.
Barry Casselman has written about national politics since 1972. His Prairie Editor blog is at www.barrycasselman.com.
