- The Washington Times - Tuesday, July 4, 2017

Senate Democrats are turning to procedural tactics to delay confirmation of President Trump’s appeals court picks, and conservative groups are firing back with a new ad in Michigan trying to force two Democrats to clear a path for one embattled nominee.

The Judicial Crisis Network says it will spend $140,000 on the ad, which demands Sens. Debbie Stabenow and Gary Peters drop any objections to Michigan Supreme Court Justice Joan Larsen, who Mr. Trump nominated to the 6th U.S. Circuit Court of Appeals on May 8.

The senators are flexing the chamber’s “blue slip” tradition, which gives individual lawmakers an exceptional amount of say in judges from their home state. Under the tradition, if both home-state senators don’t return their blue slips, signaling acceptance, Senate leaders will hold off on action on that pick.

Neither Ms. Stabenow nor Mr. Peters have returned their blue slips. Spokesmen for both senators say they’re still studying the issues on the Larsen pick.

Conservatives, though, want to see a speedy decision.

“This is someone the citizens of Michigan have overwhelmingly approved as their Supreme Court Justice,” said Carrie Severino, chief counsel at the JCN. “It’s absurd [Democrats] would attempt to block her confirmation.”

Conservatives for months have fretted over the possibility that Democrats, denied the power to block judges by partisan filibuster, would find other ways to derail Mr. Trump’s court picks.

Justice Larsen and Minnesota Supreme Court Justice David Stras, who Mr. Trump picked for the 8th U.S. Circuit Court of Appeals, had been seen as early test cases because both nominees come from states with two Democratic senators.

Neither Sens. Amy Klobuchar nor Al Franken have returned their blue slips signaling acceptance of Justice Stras. Both senators are currently reviewing his record.

“That takes time — especially since he was not meaningfully consulted by the White House in advance of the nomination,” said Michael Dale-Stein, a spokesman for Mr. Franken.

As a collegial tradition rather than a rule, unreturned blue slips aren’t automatic doom.

Judiciary Committee Chairman Charles E. Grassley, Iowa Republican, has hinted he might give the tradition less weight for circuit court nominees than for lower district court picks.

But Democrats are pushing hard for Mr. Grassley to stick with the policy followed by the previous Democratic chairman, Sen. Patrick Leahy of Vermont.

Mr. Leahy allowed blue slip objections to block nominees by President Obama to the 3rd, 6th, 10th and 11th circuits.

Indeed, at a hearing for Kevin Newsom, Mr. Trump’s pick for the 11th Circuit, Sen. Dianne Feinstein of California pointed out the seat was vacant only because Republicans used blue slips to stop Mr. Obama from filling it.

“I’ve seen in the media some comments from friends across the aisle suggesting that blue slips have historically been less important for circuit court nominees than district court nominees. And respectfully, that’s just not the case,” said Ms. Feinstein, the ranking Democrat on the Judiciary Committee.

Marge Baker, vice president of People For the American Way, said some judicial picks have been delayed for years because of unreturned blue slips, so Democrats’ handling of Justice Larsen isn’t an abuse of the process.

“A vacancy that’s been announced for 50 days is not old,” said Ms. Baker. “This is the senators doing their job under the Constitution.”

Justice Larsen would replace Judge David W. McKeague, who was appointed by President George W. Bush, and who is set to retire once a replacement is confirmed.

Under Mr. Bush and President Clinton, judicial nominees were confirmed only if both home-state senators returned blue slips, according to a memo from Ms. Feinstein to reporters.

Analysts said the blue slip policy is a way of ensuring senators play a role in advising the president on nominees — part of the Constitution’s admonition that the Senate gives “advice and consent.”

That could explain why the Michigan senators have yet to approve Justice Larsen.

“As I understand it, there wasn’t any consultation from the White House with the Michigan senators,” said Carl Tobias, a law professor at the University of Richmond.

But a spokesperson for the Trump administration is pushing back, saying the White House has gone to great lengths to consult with every senator on judicial nominations.

“In the case of Michigan, we had multiple calls and discussions with Senator Stabenow since March, as well as two calls with Senator Peters — all before Justice Larsen was nominated,” a spokesperson for the White House said.

“The Administration takes senatorial input seriously, has worked hard to obtain it, and has nominated someone in Justice Larsen who has extraordinarily broad support from the people of Michigan. We appreciate the consideration Senators Stabenow and Peters are giving to Justice Larsen’s nomination and are optimistic they will soon allow that nomination to proceed,” the spokesperson said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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