Jurisprudence

Republicans Are Abolishing Judicial Appointment Norms Again

A former Obama staffer explains how he thinks Democrats could effectively respond.

Chuck Schumer speaking and pointing.
Senate Minority Leader Chuck Schumer speaks to members of the media at the Capitol on Feb. 5.
Alex Wong/Getty Images

Next week is set to see the biggest fight over the federal judiciary since Brett Kavanaugh was confirmed to the Supreme Court in October. As the New York Times reported on Wednesday, the Senate is due to consider a Republican plan to cut the amount of debate time on district court judges from a maximum of 30 hours to just two hours. Senate Majority Leader Mitch McConnell is reportedly considering nuking the filibuster to push through this change, which would further speed up an already conveyor belt–like confirmation system that has allowed President Donald Trump to seat a record number of judges.

Meanwhile, the Senate is also due to vote on the nomination of four circuit court nominees who are particularly controversial because they have not received approval from their home state senators (in this case, all Democrats). This approval, traditionally referred to as a blue slip, is a system by which judicial nominations would historically not go forward without the approval of senators from the judges’ home states. (The term “blue slip” comes from the piece of paper that home state senators typically need to return to the Judiciary Committee in order for a nomination to go forward.) Republicans already effectively killed the blue slip process last year for circuit court nominations by allowing the confirmation of David Stras after one home-state Democratic senator did not return a blue slip, but this latest escalation will be unprecedented. If Washington’s Eric Miller is confirmed to the 9th Circuit, for example, it will be the first time in 100 years that a judicial nominee will have been confirmed without the blue slip of either home state senator.*

Ahead of this drastic set of escalations, I spoke with Chris Kang, who ran judicial nominations for the Obama White House for more than four years. Kang argues that given these recent escalations, Democratic senators should band together and attempt to force Republicans to back down from this latest escalation. He explained how they might do this in the following conversation, which has been edited and condensed for clarity.

Jeremy Stahl: Could you please walk me through how blue slips worked when you were working on judicial nominations as part of the Obama administration?

Chris Kang: When I was in the Obama White House, I worked for two and a half years in the Office of Legislative Affairs, and in that capacity I worked with Senate offices and with senators to try to find consensus judicial nominees. After that I worked in the White House counsel’s office for four years where I ran the entire judicial nomination process from the selection and vetting to the confirmation of nominees.

The one throughline for the entire Obama administration, whether it was Democratic Sen. Patrick Leahy as chairman or Republican Sen. Chuck Grassley as chairman, was that unless a nominee had support from both home state senators, that nominee would not move through the Judiciary Committee.

Was this the case for circuit court nominees as well as district court nominees?

It was across the board. When you look at the roll call votes for President Obama’s circuit court nominees who had support from Republican home state senators, almost all of them are confirmed unanimously because we did so much work to get the buy-in and support on the front end.

How have you viewed the evolution of the blue slip process over the course of the last year-plus in terms of the diminishing of that power for Democrats who are now in the minority?

We can talk about it as Democrats losing power, but really, it’s the institution of senators losing any buy-in or influence. Sen. Grassley wrote an op-ed in the Des Moines Register in 2015 saying he appreciated Sen. Leahy adhering to the blue slip and he would promise to uphold it as well. And he did for two years—he used that promise to block President Obama’s nominees. To see him so quickly change on a dime for this short-term gain of moving these circuit court seats has been astonishing.

What’s your proposal for Democrats in the Senate using what limited tactics they have left to fight this?

The conventional wisdom on both sides is that because Democrats are now in the minority, and judges can now be confirmed with a simple majority vote, Democrats don’t have any leverage. As long as both sides buy into that theory, the White House has no incentive to actually work with Democratic senators. And Republican senators have no incentive to back down.

What I think the Democratic senators need to realize is they actually have a lot of power and influence left still. The irony is that the power they have left is in the blue slips. They still have blue slips to prevent district court nominees from moving forward. This is something that Sen. Graham has repeated now many times in his scant few weeks here as Judiciary chairman: that he will continue to observe the blue slip process for district court vacancies.

What individual senators can do is commit to withhold them for vacancies in their states. For example, there are 15 district court vacancies in California. If Sens. Kamala Harris and Dianne Feinstein said they would not allow any of those seats to be filled unless and until the Trump administration withdrew the circuit court nominees where blue slips had not been returned and worked in good faith [on those circuit nominations], that’s a lot of leverage. Same in New York—there are two circuit court vacancies where President Trump has moved forward with nominations that Sens. Chuck Schumer and Kirsten Gillibrand oppose. If they use blue slips to block the 13 open district court vacancies, you would force the White House to come back to the table on the circuit court judges.

If every Democratic senator says we’re going to withhold the 76 blue slips we have, that would stop President Trump from being able to fill almost half the judicial vacancies that exist now. That changes the incentive structure. That changes the ability to have a conversation and really push to get better judges in the circuit court system and maybe restore some semblance of a blue slip process for circuit courts.

To push back there in terms of your description of the leverage, what’s to stop Lindsey Graham from just saying something like, “I said I would respect the blue slip process for district court nominees, but the Democrats are not acting in good faith, they’re doing an across-the-board blockade, and I can no longer have this be the process, otherwise we’ll never get any business done and we’ll never have any judges confirmed again. So, no more blue slips for you.”

There are not that many circuit court vacancies. So the possibility that the personal power [of GOP senators will be] eroded is much smaller [with the elimination of blue slips on circuit court appointments]. The odds that there’s going to be a circuit court vacancy from South Carolina while there’s a Democratic president and Democratic Senate is not so high for Sen. Graham, for example, to feel that he’s sort of giving anything away.

However, there are a lot more vacancies at the district court level throughout the country. And each Republican senator will be faced with the prospect of not having any say for these district court vacancies. And this is a power that they guard jealously. Again, these Republican senators would come to us in the White House and say, “That’s not the person I would nominate. This one is.” And then we in the White House would have to decide, “Is the pick good enough that we’ll move ahead with that person?”—giving, again, the right of first refusal to these Republican senators.

If you don’t have any blue slips at all for district courts, that’s going to be the ability for a Democratic president to start placing not just prosecutors who we think are good for these district court openings, but filling them with public defenders and immigration rights activists, and pro-choice activists, and LGBTQ rights activists. The possibility of a future Democratic president putting these lawyers and advocates in place should have a very chilling effect on all Republican senators and at least make Lindsey Graham think for a long time before making such a drastic move.

If he thinks twice and then thinks, To hell with it, I’m going to eliminate district court blue slips anyways, that is going to allow in the immediate term President Trump to really run completely roughshod in terms of who he places on the bench. If Graham doesn’t back down, and he blows up the entire thing, why is that not a disaster for Democrats?

I think that even in that situation, there’s long-term benefits for progressives. My experience in the Obama White House is, again, Republicans would be very stingy with their blue slips. For the most part, they would use their blue slips for as much leverage they could to get the most moderate person they could get. You look at what Democrats are doing with their blue slips, and they are much more free to give them. They are much more in this mindset that “Is the person qualified?” literally from a résumé perspective, and much less willing to fight for people who have progressive values and have the same understanding of the Constitution.

So, in this current system even, blue slips are working against Democrats. If they were gone all together, it would then give a Democratic president a much freer hand to put forward the people that they want. The delta or the difference [in terms of the ideology of judges they are able to appoint] for a Democratic president overall would be much greater than the difference would be for a Republican president, who is unconstrained right now.

One concern that I’ve heard is that if you cause a big fight and you blow up that committee even further over blue slips, you have less leverage for a potentially bigger and more important fight down the road.

This idea that there’s going to be something bigger down the line that’s going to be more important than the courts is fundamentally misunderstanding the role and the importance of our courts. But also, the idea that if Democrats just play nice, Republicans will be bipartisan down the line is laughable.

I think one of the most frustrating things to me has been that Democrats don’t have any response whenever Republicans change the rules. So, for example, when Republicans changed the voting threshold for Neil Gorsuch and jammed him through, what did Democrats do in response? They didn’t institutionally as a caucus have any response. When Republicans were running a sham confirmation process for Brett Kavanaugh, Democrats decided that that would be the time that they’d start letting judicial nominees move by unanimous consent.

Meanwhile, look what Republicans did when Democrats changed the rules to overcome Republican obstruction on the courts in 2013. In response, Republicans forced Democrats to file 130 cloture votes in a 13-month period—there have only been 90 in history before that. That’s a response.

It’s great that Democrats will all get together and vote as a caucus against Eric Miller in defense of Sens. Patty Murray and Maria Cantwell having their blue slip objections overruled, but that’s not going to actually change the fundamental dynamics at the end of the day.

I will say that Sen. Mazie Hirono has been the leader on this. Once Republicans first ignored a Democratic senator’s blue slip and moved forward the nomination of David Stras, she started voting “no” on every single Trump judge on cloture. We’ve seen just last week Sens. Kamala Harris and Sen. Kirsten Gillibrand—because their blue slip prerogative has been overruled—they’ve come out and said they’re going to vote “no” on every single circuit judge.

That’s an important shift in the mentality to begin looking beyond the individual nominees that they object to, but at the end of the day it’s not going to actually change the incentive structure. Democrats withholding their blue slips on district court nominees would.

Correction, Feb. 22, 2019: This article originally misstated that this will be the first time in 100 years that a judicial nominee will have been confirmed without the blue slips of both home state senators. Other nominees have been confirmed with one out of two home-state blue slips, but this would be the first time neither returned their blue slip.