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The Imaginary Rule That Keeps Obama’s Judges From Being Confirmed

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"The Imaginary Rule That Keeps Obama’s Judges From Being Confirmed"

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The United States Senate is a labyrinth of arcane rules, obscure precedents, and traditions that were invented for an era when senators rode horses and buggies to Washington. There’s a rule that can force the clerk to spend hours reading a 767-page amendment aloud. There’s a another one that lets the minority leader order all committee work to shut down after 2pm. Indeed, even something as basic as a judicial confirmation is drawn out and complex. To confirm a circuit judge, the Senate has to vote on that judge, wait 30 hours, and then vote for her again.

And even if someone masters the Senate’s many rules and traditions, they will still encounter roadblocks that are written nowhere in the Senate’s standing rules and that have very little grounding in its history. One of these is a practice that gives each senator the right to veto anyone named to a federal judgeship in their state. Because of this veto, Republican senators can make extortionate demands from President Obama. And they can back those demands up by threatening to hold every judicial vacancy in their state open until Obama leaves office.

Armed with this veto, Georgia Republican Sens. Saxby Chambliss and Johnny Isakson pressured President Obama into nominating a largely Republican slate of nominees to several judgeships in Georgia (one of these nominees cast votes in favor of the Confederate flag, marriage discrimination and anti-abortion groups while he was a state lawmaker). Sen. Dean Heller (R-NV) vetoed a judge because she once made a statement the National Rifle Association disagreed with. Sen. Richard Burr (R-NC) is currently blocking a nominee that he personally recommended to the White House.

This veto exists largely because the chair of the Senate Judiciary Committee says that it exists. That chair, currently Sen. Patrick Leahy (D-VT), has control over the proceedings in their committee. And Leahy has suggested each senator’s power to veto nominees from their home state is one of their rights as a senator. As Leahy put it in 2012, “I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators.”

Senator Leahy’s office also shared with us several reasons why they believe it would be a mistake to end this veto. They note that Democrats may want to veto a Republican president’s nominees as well. They warn that eliminating this veto would infuriate Republicans and cause them to block nominees through other means, and they cite confirmation statistics indicating that Leahy has been successful in getting many nominees confirmed despite the fact that some nominees are vetoed.

Yet, while Leahy has the power to keep this veto in place as long as he chairs the Judiciary Committee, he will not do so forever. And a close examination of the history of this practice reveals that only one of his predecessors followed the single-senator veto practice that Leahy supports. If a Republican takes the White House in 2016, and another Republican assumes the gavel in the Senate Judiciary Committee, there will be nothing preventing that new Judiciary chair from eliminating the single-senator veto. Indeed, if Leahy’s successor does eliminate the veto, they will do little more than roll back an unusual practice that did not exist for most of the Senate’s history.

Blue Slips

The single-senator veto rule is rooted in a Senate tradition known as the “blue slip.” As Leahy wrote in an op-ed defending his use of this rule, “[a] blue slip is a piece of paper that the Senate Judiciary Committee chairman uses to solicit views of home state senators when someone is nominated to be a judge in their state.” The significance of this piece of paper has varied greatly, however, throughout the committee’s history. Under Leahy, if a single senator returns a blue slip indicating that they oppose a nominee — or, potentially, if they do not return the blue slip at all — then the Judiciary Committee will not hold a confirmation hearing on that nominee. The nomination effectively died. For nearly all of the blue slip’s history, however, senators did not have this power.

The origins of the blue slip are a bit hazy. Some accounts place it in 1917, while others claim it originated a few years earlier. According to the non-partisan Congressional Research Service (CRS), however, blue slips served a largely advisory role for most of their early history. Until 1956, “[i]f a Senator objected to his/her home-state nominee, the committee would report the nominee adversely to the Senate, where the contesting Senator would have the option of stating his/her objections to the nominee before the Senate would vote on confirmation.” Thus, nominees who received a negative blue slip would still receive an up or down vote by the full Senate.

George Washington University political scientists Forrest Maltzman and Sarah Binder offer one explanation for why this blue slip came into being. In 1913, Democrats took control of the Senate after many years in the political wilderness. Yet they also took control over a Senate throttled by even more choke points than the Senate faces today. Among other things, the Senate lacked a cloture rule permitting filibusters to be broken, so it was very important for the Senate leadership to identify which nominees were likely to face opposition lest the entire body become paralyzed by endless filibustering. Blue slips, according to Maltzman and Binder, “appear to have had high information value for the committee chairman.” It was “devised to be an early warning system, not an absolute veto.”

It should be noted that, while the blue slip did not prevent nominees from receiving a vote in its early years, a negative blue slip often had the practical effect of preventing a nominee from being confirmed. Few senators from, say, Iowa, have much of a stake in who sits on a district court in Maine. So if Maine’s senators objected to a nominee, other senators would often honor that objection as a courtesy to a colleague that they may need to support one of their pet projects someday. Nevertheless, prior to 1956 that judgement was left to each individual senator.

Eastland and Earl Warren

The first Senate Judiciary chair to implement a single-senator veto — and the only one until Leahy — was Senator James Eastland (D-MS). A Mississippi plantation owner, Eastland believed that “the Southern institution of racial segregation or racial separation was the correct, self-evident truth which arose from the chaos and confusion of the Reconstruction period.” He chaired the Senate Judiciary Committee for more than two decades, a period that saw the death of Jim Crow and the enactment of two of America’s most important civil rights laws. Yet these bills only became law because Eastland’s Senate colleagues found ways to make an end run around him.

There’s no smoking gun document revealing exactly why Eastland transformed the blue slip into a single-senator veto shortly after taking over the Judiciary Committee — or at least, none of the scholars ThinkProgress spoke with were able to point us to such a document. Nevertheless, there is an obvious explanation for why Eastland wanted to give a veto power to himself and his fellow Southern senators. As Villanova Law Professor Tuan Samahon writes, “[w]hen segregationist ‘Dixiecrat’ Senator John Eastland chaired the Judiciary Committee, he endowed the blue slip with veto power to, among other things, keep Mississippi’s federal judicial bench free of sympathizers with Brown v. Board of Education.”

In 1954, two years before Eastland became Judiciary chair, the Supreme Court announced its landmark decision in Brown. One year later, however, the Court handed down a follow up decision announcing that desegregation must only proceed with “all deliberate speed.” More significantly for Eastland’s purposes, the justices also largely delegated the task of implementing Brown to local federal trial judges. “[C]ourts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles,” the Supreme Court explained in what is often referred to as Brown II. “Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal.”

All of a sudden, it mattered a great deal who sat on federal district courts in the segregated South. With white Southerners gearing up for massive, widespread resistance to the Brown decision, the question of whether a particular school district became integrated could hinge upon which judge was assigned to supervise that district’s desegregation effort. And Eastland’s rule permitted Southern senators to veto any judge they feared might be sympathetic to ending Jim Crow.

An unpublished paper co-authored by Ohio State Political Science Professor Janet Box-Steffensmeier, graduate student Charles Campisano and the Administrative Office of the U.S. Courts’ Kevin Scott, offers another reason why Eastland may have wished to give Southern senators a veto shortly after Brown II was decided. Although senatorial courtesy often sufficed to prevent the Senate from confirming nominees that home-state senators objected to in the pre-Eastland years, Brown changed that political calculus. “[S]enators from other parts of the country could not afford politically to vote against a nominee just because he was not a segregationist,” Box-Steffenmeier and her co-authors write. “Hence, the only way southern senators could defeat a nominee was at the committee level.” And the surest way to defeat a nominee at the committee level was to refuse to give them a confirmation hearing altogether.

After Eastland

In 1978, Eastland retired, and Sen. Edward Kennedy (D-MA) became chair of the Judiciary Committee. Almost immediately, Kennedy abandoned the single-senator veto. As chair, Kennedy announced that “[i]f the blue slip is not returned within a reasonable time, rather than letting the nomination die I will place before the committee a motion to determine whether it wishes to proceed to a hearing on the nomination notwithstanding the absence of the blue slip.”

When Sen. Strom Thurmond (R-SC), a senator with a well-known segregationist history of his own, became Judiciary Chair in 1981, he announced that he would effectively give home-state senators seven days to object to a nominee, permitting them a veto if they objected in that narrow time frame, but adding that “if we do not hear within the seven days, we assume . . . there is no objection.” In practice, however, Thurmond did not always follow this rule. In 1983, for example, the Senate confirmed Judge John Vukasin to a federal district court in California, despite the fact that California Sen. Alan Cranston (D) objected to the nominee.

To be sure, there is a great deal of nuance to how different chairs viewed the blue slip once Eastland left the Senate. In mid-1989, then-Sen. Joe Biden (D-DE) released a public letter announcing that “one negative blue slip would be ‘a significant factor to be weighed’ but would ‘not preclude consideration’ of a nominee ‘unless the Administration has not consulted with both home state Senators.’” If both home-state senators objected to a nominee, by contrast, the Biden Rule provided that the nominee would not receive a hearing. In 2003, Sen. Orrin Hatch (R-UT) implemented a policy that “[a] return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination — provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators” (Democrats accused Hatch, with justification, of applying one standard to President Clinton’s nominees and another, more favorable one to President Bush’s). Sen. Arlen Specter (R-PA), who chaired the committee from 2005-2007, allowed a single senator to veto a federal trial judge, but not a more powerful court of appeals nominee.

Leahy has returned to the strict enforcement of the blue slip last seen when Eastland was chair. Today, this does not mean that senators are actively blocking judges who oppose segregation, but it does have profound implications for several other areas of the law — most significantly abortion rights. The reason why lower court judges wielded so much authority over desegregation in the immediate wake of Brown is because Brown II effectively delegated the power to oversee integration to those judges. Similar things could be said about the Supreme Court’s decision in Planned Parenthood v. Casey, an important abortion case which held that states may regulate abortions so long as those laws do not impose an “undue burden” on the right to choose.

As ThinkProgress explained last year, this standard is so vague that it gives federal district and circuit court judges tremendous discretion to decide the scope of abortion rights within their jurisdiction. Rigid adherence to a strong blue slip rule, moreover, will ensure that the states most likely to elect lawmakers who are hostile to abortion rights will also be the states that are least likely to have pro-choice judges — or, as we previously wrote, when you “[c]ombine the blue slip’s ability to move red state courts to the right with Casey‘s vague standard, [] that means that the states that are most likely to enact restrictive abortion laws are also the states that are least likely to have judges willing to overturn those laws.”

The Case for the Single-Senator Veto

Leahy’s office offered several justifications for their interpretation of the blue slip policy. They said that past chairs have played fast and loose with the blue slip, while Leahy has at least been consistent in allowing a single-senator veto in all cases. They warned that Republicans will retaliate if Leahy adopts a less rigid blue slip policy, as they retaliated shortly after Senate Democrats eliminated the GOP’s ability to filibuster most nominees by using other tactics to halt confirmations. And they emphasized the fact that more judges have been confirmed under President Obama than were confirmed by this point in George W. Bush’s presidency.

A central justification for the single-senator veto, however, is that it is of use to Republicans and Democrats. Leahy spokesperson Jessica Brady listed several Bush nominees — James Rogan, Carolyn Kuhl, Henry Saad, Terrance Boyle, Gene Pratter and Claude Allen — who were held up by blue slip problems. Kuhl, for example, sided with a doctor when she was a California trial judge who invited a drug company salesman to watch a woman’s breast exam. According to Kuhl, the woman did not have a “reasonable expectation of privacy” during her breast exam because she did not explicitly object to the drug salesman’s presence.

But in the 2002 election, Democrats lost their majority in the Senate and Hatch became judiciary chair. Hatch did not honor Feinstein and Boxer’s blue slips. — he gave Kuhl a committee hearing anyway. Though Kuhl was eventually defeated on the floor by a Democratic filibuster, the fact that she was not ultimately confirmed had little to do with the blue slip.

There is nothing inherently liberal or conservative about this rule. Eastland and his fellow segregationists wielded it to thwart Brown. Modern day Republicans can wield it to thwart Roe, or to force President Obama to nominate Republicans as the price of confirming Democrats. But there’s nothing preventing a Democratic Senator from also turning the Eastland’s rule against a Republican president.

Except that, if four years from now the United States is looking at President Rand Paul and Senate Judiciary Chair Chuck Grassley, the question of whether Chairman Grassley honors the single-senator veto will not be up to anyone other than Grassley himself. Given the fact that nearly every single senator who chaired the Judiciary Committee in the past has not honored this practice, there is little reason to believe that Grassley will support a single-senator veto.

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