President Trump has been remaking the Ninth Circuit Court of Appeals, shifting further and further to the right. On Wednesday he got another victory with the confirmation of Kenneth Lee in a 52-45 vote. And Democrats are really miffed about this one.
Lee’s confirmation came despite neither Sen. Dianne Feinstein (Calif.), the top Democrat on the Judiciary Committee, nor Sen. Kamala Harris (D-Calif.), a 2020 presidential contender, returning a blue slip on his nomination.
The blue-slip rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return the blue slip to the Judiciary Committee. How strictly the precedent is upheld is decided by the committee chairman, and enforcement has varied depending on who wields the gavel.
Lee who had a unanimously “well qualified” rating from the American Bar Association, is Trump’s 40th circuit judge to be confirmed, even though Democrats were hoping to block his nomination.
Since the Democrats don’t have a majority in the Senate, and Harry Reid nuked the filibuster back in 2013, Democrats were hoping to use the blue slip tradition to obstruct Trump’s judges, even though it was not meant to be a de facto veto on judicial nominees, and according to the Congressional Research Service (CRS), “over the century of the use of the blue slip, different chairmen have used the blue slip in different ways.”
During some years, a chairman has required a nominee to receive two positive blue slips from his or her home state Senators. This particular blue slip policy, for example, was in place during the eight years of the Obama presidency and much of the George W. Bush presidency—during periods of both unified and divided party control.
During other years, a chairman’s blue slip policy has allowed for a nomination to proceed in committee—and, at times, to the Senate floor—even if the nominee did not have the support of one or both home state Senators.
According to CRS, only two Senate Judiciary Committee chairmen have required two positive blue slips: Senator Patrick Leahy (D-Vt.) and former Senator James Eastland, a Mississippi Democrat who ran the committee from 1956 to 1978. In fact, under former Democratic Judiciary Chairman Joe Biden, a current candidate for president, negative blue slips didn’t prevent nominees from being considered. He told President George H.W. Bush in 1989 that “the return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation a judicial nominee, but it will not preclude consideration of that nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate.”
Senator Mitch McConnell decided in October 2017 to no longer allow blue slips to prevent a committee or confirmation vote. At the time, McConnell told Fred Barnes of The Weekly Standard that the Republican majority would treat a blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball.”
So don’t let headlines and rhetoric fool you, there is no longstanding precedent that negative blue slips could stop a nominee from being considered. Democrats just wanted to use them for that purpose.
Matt Margolis is the author of The Scandalous Presidency of Barack Obama and the bestselling The Worst President in History: The Legacy of Barack Obama. His new book, Trumping Obama: How President Trump Saved Us From Barack Obama’s Legacy, will be published in July 2019. You can follow Matt on Twitter @MattMargolis