How Just One Senator Vetoed A Judge And Gave A Big Gift To The NRA

Senate Republicans Explain The Rules Governing Judicial Nominees

Judge Elissa Cadish, a state court judge in Nevada who President Obama nominated to a federal district court, asked the President to withdraw her nomination, according to a letter that became public today. Cadish was the victim of an arcane senate tradition that allowed just one senator, Sen. Dean Heller (R-NV), to unilaterally block her nomination. Heller objected to her nomination because she once correctly described the state of gun rights law prior to the Supreme Court’s decision in District of Columbia v. Heller.

In 2008, before Heller established for the first time in American history that the Second Amendment protects an individual right to bear arms, Cadish was asked whether the Constitution does indeed protect such an individual right, and she gave the only correct answer a judge could have given at that point in history — “I do not believe that there is this constitutional right,” adding “of course, I will enforce the laws as they exist as a judge.” This statement accurately described the state of the law pre-Heller.

Nevertheless, Cadish’s nomination languished without a hearing due to a Senate tradition that allows a single senator to veto a nominee from their home state. In Senate parlance, Heller refused to return his “blue slip” on Cadish, and Senate Judiciary Chair Pat Leahy (D-VT) honored a tradition establishing that a nomination will not receive a hearing unless both home-state senators sign these slips.

It should be noted that not every Senate Judiciary Chair has honored this tradition in the past. In 2003, for example, when Sen. Orrin Hatch (R-UT) took over as Judiciary chair and George W. Bush was president, Hatch largely abandoned the blue slip rule. According to the Congressional Research Service, “[a] return of a negative blue slip by one or both home-state Senators d[id] not prevent the committee from moving forward with the nomination — provided that the Administration [] engaged in pre-nomination consultation with both of the home-state Senators,” during during Hatch’s tenure.

There is no good reason why President Obama’s nominees should not enjoy the same deference that President Bush’s nominees enjoyed under Hatch.