Posted by Jonathan Adler: Senate Republicans Unite to Defend “Blue Slips”: http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236287965
All 41 Senate Republicans have signed a [1]letter to President Obama calling upon him to renominate one or more of President Bush�s stalled appellate nominees and respect the traditional role of home-state Senators in vetting judicial appointments. The letter notes that President Bush renominated a stalled Clinton nominee (Roger Gregory), and elevated another (Barrington Parker), and asks President Obama to consider doing the same. Further, the letter insists that the Senate Judiciary Committee respect the traditional blue-slip policy �to be observed, even-handedly and regardless of party affiliation.� Failure to take such steps, the letter suggests, could prompt a Republican filibuster of appellate judicial nominees. Specifically, the letter warns that if GOP Senators �are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee� and that Senate Republicans �will act to preserve this principle and the rights of our colleagues if it is not.� [2]Politico and [3]Ed Whelan have more. I am [4]no fan of the blue slip, particularly with regard to appellate nominees, but I certainly understand why Senators like it. Insofar as seats on the federal circuit courts of appeals are effectively divvied up among the states within each circuit, Senators want to preserve their prerogative to influence appointments to their states' seats. Focusing on preservation of the blue slip also provides common ground for Republican senators who disagree over what makes for a good appellate judge and whether the Senate should consider judicial ideology in the confirmation process. There is no way all 41 Senate Republicans would hold together to oppose an Obama nominee over judicial ideology, temperament, or personal failings (say, failure to pay taxes), but the caucus may well stick together over process and Senatorial prerogative. It will be interesting to see how the Obama Administration and Senate Democrats, respond to this letter. Then-Senator Obama showed no inclination toward bipartisanship over judicial nominations. He supported the filibuster of Bush nominees, voted against cloture for the Roberts and Alito nominations, and refused to join the �Gang of 14.� Senate Republicans understandably wonder why they should treat Obama�s judicial nominations any better than he treated those of President Bush. Yet continuing tit-for-tat and one-upmanship in judicial nominations has produced little but a deepening, downward spiral of obstruction and politicization of judicial nominations. Perhaps a mild overture by the White House � say the renomination of stalled nominees to the Third and Fourth Circuits � could help turn the page. So there is no misunderstanding, were it up to me, I would eliminate the blue slip for appellate nominations. I also oppose filibusters of judicial nominations and believe all federal judicial nominations should receive reasonably prompt consideration by the Senate Judiciary Committee and an up-or-down vote. Further, I believe Presidents should receive substantial deference from the Senate in their choice of judicial nominees, and that Senate consideration should focus on qualifications and temperament, not ideology. This was my view when President Bush was in office, and it remains my view today. As a practical matter, however, I also recognize that some sort of accommodation by both sides may be necessary if we are to bring the retaliatory escalation of obstruction to an end. References 1. http://www.judicialnetwork.com/images/Leahy_letter.pdf 2. http://www.politico.com/news/stories/0309/19526.html 3. http://bench.nationalreview.com/post/?q=ODMzMDJhNDJjYTE1ODdjNWNlMjNmYWM1ZjY0YTc2MWI= 4. http://volokh.com/posts/chain_1116684739.shtml
_______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
