March 03, 2009

GOP Unites on Filibuster over Blue Slip

Before getting to our main topic, we note that Sonia Sotomayor, the notoriously activist Second Circuit judge who ranks high on lists of potential Obama Supreme Court nominees, made her first appearance at a Federalist Society event this weekend after more than 16 years on the federal bench. The Society is known for its opposition to judicial activism. We don’t know all the circumstances that led to Sotomayor’s participation on a panel at the Society’s 2009 Student Symposium, but we wonder if she is preparing for a possible Supreme Court confirmation hearing by demonstrating that she is willing to work with conservatives.

For those who have been asking whether Senate Republicans will be united on the issue of judicial nominations, a strong indication came yesterday afternoon when all 41 GOP senators sent a letter addressing the subject to President Obama. In what Politico called the “opening salvo in what could be a partisan battle in the Obama years,” the letter lays out two steps necessary for avoiding a “needlessly acrimonious” judicial appointments process. Specifically, the GOP letter demands respect for the tradition of consulting home state senators on judicial picks and calls for Obama to renominate several of President Bush’s unconfirmed judicial nominees. See here for CFJ’s previous calls for Obama to meet the “Bush Standard” set when President Bush nominated two of Bill Clinton’s judicial picks in 2001, and here for the L.A. Times’s call for the same.

The most significant aspect of yesterday’s letter is the fact that it was signed by all GOP senators. All 41 Republicans will be needed for the party to use the filibuster – or threat thereof – as a tool to force extended debate on Obama’s judicial nominees and, if necessary, to block nominees so extreme that they meet the "extraordinary circumstances" standard set forth in the Gang of 14 agreement. Without such a tool, Democrats would likely rush Obama’s more extreme nominees through the Senate in order to avoid the controversy that would spring from a full airing of their records.

The letter’s demand for consultation with home state senators is precisely the sort of procedural issue on which even the most moderate members of the GOP can be expected to fight the Democratic majority. All 41 Republicans can easily unite behind the letter’s promise to “act to preserve … the rights of our colleagues.”

While the GOP letter does not refer to the “blue slip” rule by name, the right it refers to is the requirement that both home state senators consent – by turning in a blue slip – before a district or circuit court nominee can get a hearing. In the words of Politico, “Republicans are threatening a filibuster” if Judiciary Chairman Patrick Leahy fails to adhere to the rule and apply it “even-handedly.”

GOP senators are angry 1) that Sen. Leahy has recently equivocated about respecting the blue slip rule after leaning on the rule so heavily during the Bush Administration (see Leahy’s quotes below), and 2) that Leahy failed to apply the rule in an even-handed manner during the previous Congress. Instead, Leahy put more weight on home state senators’ consent when Democratic senators were involved. Yesterday’s letter is addressed to President Obama, but Senate Republicans know that Leahy cannot run roughshod over them if Obama demands otherwise with regard to his own nominees.

Republicans hold at least one Senate seat in a majority of states – 27 to be exact – so assertive use of the blue slip rule is likely to be the GOP’s most effective means for encouraging the selection of moderate judicial nominees, and if necessary, stopping Obama’s most extreme nominees. As Politico noted, “several Republicans have warned Obama that the quickest way to squander bipartisan goodwill is to nominate far-left judges.”

SEN. LEAHY ON THE BLUE SLIP RULE (source: Senate Republican Communications Center):

“Simply stated, the blue slip practice is the enforcement mechanism for the consultation that the Constitution calls for.” – Sen. Leahy, Statement, 7/30/03

“Requiring the support of home state Senators is a traditional mechanism to encourage the White House to engage in meaningful consultation with the Senate.” – Sen. Leahy, Statement, 3/3/08

“I will insist that the Senate's blue-slip practice continues.” – Sen. Leahy, Press Conference, 5/3/01

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