Four years ago, President Obama was in the White House and Democrats controlled a solid majority in the United States Senate. At the very least, Obama should have had free rein to appoint federal judges. Yet then-Senate Judiciary Chair Patrick Leahy (D-VT) insisted on giving Republicans the power to veto many of Obama’s nominees.
Three years later, in a move that pretty much everyone on the planet who is not named “Patrick Leahy” knew would inevitably play out, now-Senate Judiciary Chair Chuck Grassley (R-IA) has decided that Democrats who object to a Trump judicial nominee can go beat eggs.
Leahy played himself. And, as a result, the Affordable Care Act may now be in jeopardy thanks to Leahy’s unwillingness to treat Republicans as bad faith actors driven entirely by will to power.
To explain, there is a Senate tradition known as the “blue slip,” which gives home-state senators an outsized influence upon who gets appointed to federal courts within their state. When a judge-in-waiting is nominated, home state senators indicate that they approve of that judge by literally returning a blue slip of paper to the Senate Judiciary chair. What actually happens if a senator refuses to return this blue slip (or indicates on the slip that they oppose the nominee), however, is up to the chair.
When Sen. Orrin Hatch (R-UT) chaired the committee under his fellow Republican President George W. Bush, Hatch implemented a policy that “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.” The late Sen. Arlen Specter (R-PA), who chaired the committee from 2005-07, allowed a single home state senator to veto a federal trial judge, but not a more powerful appellate nominee.
Yet, when Leahy took over the committee in 2007, he implemented a strict blue slip rule in an apparent effort to reach across the aisle to Republicans. “I have steadfastly protected the rights of the minority,” Leahy said in 2012. “I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators.”
The Democrats who criticized Leahy for this practice at the time were correct. Not long after President Donald Trump took office, Grassley abandoned Leahy’s policy. Thanks to Leahy’s refusal to see his Republican colleagues with open eyes, several federal judgeships remained open for years under President Obama, only to be swiftly filled by Trump.
And two of those seats are on a court that will soon weigh in on the fate of Obamacare.
On Friday evening, Judge Reed O’Connor — a former Republican Senate aide with a history of poorly reasoned opinions striking down Democratic policies — handed down a decision striking down the entire Affordable Care Act. That decision will soon appeal to the United States Court of Appeals for the Fifth Circuit. And, thanks to Leahy’s decision to implement a strong blue slip rule under Obama, the Fifth Circuit is dominated by hardline Republicans who are likely to affirm O’Connor’s decision.
In 2012, Fifth Circuit Judge Emilio Garza took “senior status,” a kind of semi-retirement that opened up a vacancy on the Fifth Circuit that Obama could have filled. The next year, Garza’s colleague Judge Carolyn Dineen King did the same.
Yet, thanks to the blue slip, Texas Sens. John Cornyn (R-TX) and Ted Cruz (R-TX) could veto anyone Obama nominated to these two Fifth Circuit vacancies. Indeed, Cornyn and Cruz were so intransigent that the Obama White House eventually gave up on trying to find nominees that the two men wouldn’t block.
As a result, Republicans now control 11 of the 16 active judgeships on the Fifth Circuit. Two of the court’s Republican appointees, Judges Leslie Southwick and Catharina Haynes, are relative moderates who’ve previously broken with the GOP in high-profile cases. That means that that there are nine judges on the Fifth Circuit who are likely to vote against Obamacare, and nine makes a majority.
The Garza and King seats, meanwhile, are now held by Trump appointees Don Willett and James Ho, two deeply ideological conservative hardliners. Had those seats instead been filled by President Obama, there would almost certainly be at least nine judges on the Fifth Circuit to reverse O’Connor’s opinion.
In fairness, the Fifth Circuit’s decision on Obamacare is not yet written in stone. Judge O’Connor’s reasoning is laughably weak — so weak, in fact, that it was condemned by many prominent conservatives. It’s possible that one or more of the Fifth Circuit’s hardliners will be too embarrassed to join an opinion affirming O’Connor.
It’s also worth noting that most court of appeals cases are decided by three-judge panels. So it is possible that at least two judges on the panel that hears this case will be drawn from the Fifth Circuit’s more moderate faction.
Yet, thanks to Leahy’s needlessly strong blue slip rule, it is more likely than not that the Fifth Circuit will back O’Connor. And that could have profound consequences for how the Supreme Court will decide the case. As Yale law professor Jack Balkin wrote after the Supreme Court nearly struck down the Affordable Care Act based upon a different legal theory that most experts believed to be nonsense, “arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument.”
If a federal appeals court sides with O’Connor, that makes it more likely that Republicans on the Supreme Court decide that they have enough political cover to strike down Obamacare on a lawless legal theory.
Of course, it’s not possible to go back in time and stop Leahy from implementing a strong blue slip rule. But Democrats can still take an important lesson from Leahy’s blue slip folly.
At some point in the near future, possibly as soon as 2021, Democrats may regain control of the Senate and the White House. When that happens, they will have a choice to make. Democrats can decide that the best course of action is to restore dead norms that Republicans are certain to abandon when they are in power, or Democrats can actually try to accomplish something.