- The Washington Times - Sunday, July 9, 2017

No Democrat has yet returned a “blue slip” signaling acceptance of President Trump’s federal judicial picks — an ominous sign for Republicans, who fear it signals an upcoming attempt to slow-walk the administration’s plans to reshape the federal judiciary.

Democrats have suggested that blame lies with the White House. They say Mr. Trump’s aides haven’t done enough to consult with them before announcing nominations to fill federal appeals court vacancies.

The White House, though, said it has gone to great lengths to try to rope Democrats in early in the process, with frequent outreach, only to be met by dilatory tactics.

“The administration has been seeking consultation from home-state senators for months — even as senators frequently fail to return our calls, don’t respond to our inquiries and otherwise avoid our constant overtures,” said a Trump administration official who asked not to be identified in order to speak about private communications.

The issue is about to come to a head, as Senate Republicans will soon have to decide whether to proceed with several key circuit court picks over the reticence of home-state Democratic senators.

Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, has signaled that he may alter adherence to the blue slip policy, which is a tradition giving senators a sort of veto over judges picked from their home states who don’t meet with their approval.

In the past, senators could derail a hearing and vote by not returning a blue slip.

The first tests are likely to come on Minnesota Supreme Court Justice David Stras, who was nominated to the 8th U.S. Circuit Court of Appeals, and Michigan Supreme Court Justice Joan Larsen, who was nominated to the 6th U.S. Circuit Court of Appeals. Both nominations were announced on May 8, but the justices have yet to have confirmation hearings.

Spokespeople for Sens. Debbie Stabenow and Gary C. Peters in Michigan and Sens. Al Franken and Amy Klobuchar in Minnesota said they are still reviewing the records for both justices. None of them has returned a blue slip for their home-state nominee.

The White House says it has reached out multiple times to the four senators.

Mr. Peters spoke with the administration twice before Justice Larsen’s nomination, and Ms. Stabenow spoke with the administration at least four times, according to the White House.

Mr. Franken talked three times with the Trump administration, and Ms. Klobuchar had five conversations prior to Justice Stras’ nomination, the White House said.

Mr. Franken’s office acknowledged the conversations but said they don’t qualify as “meaningful consultation” because the administration simply conveyed its intent to nominate Justice Stras.

A spokesperson from Mr. Franken’s office said the Obama administration, while it was consulting with Republican home-state senators, waited roughly 800 days before moving ahead with nominees over Republican objections.

The White House said that was a bad standard.

“Choosing an 8th Circuit nominee in Minnesota shouldn’t take twice as long as it took to build the Empire State Building,” said the Trump administration official.

The official said calls with Mr. Franken were “extensive, represent an exceptionally meaningful consultation and have resulted in a nominee who has the strong bipartisan support of his local community and the people of Minnesota.”

Mrs. Klobuchar’s office didn’t comment on consultation efforts with the administration but said she looks forward to meeting with Justice Stras.

Ms. Stabenow’s office said she was only notified of the administration’s nomination, and Mr. Peters’ office said he was told of the White House’s plan to nominate Justice Larsen but wasn’t asked for input on the nomination.

The administration said both of the nominees were elected to their states’ high courts, so they shouldn’t be controversial.

Justice Larsen and Justice Stras were also on the president’s short list of potential Supreme Court nominees for more than a year.

“In Minnesota, Michigan and Colorado, the president has nominated deeply respected state supreme court justices who have been elected by the people of those states and who have sterling reputations in their local communities,” the official said. “And in Pennsylvania and Indiana, the president has nominated prominent, widely respected law professors at world-class universities — Notre Dame and the University of Pennsylvania. These are consensus picks who would receive unanimous support if offered by any other administration.”

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.”

But the practice has varied over the years.

From 1979 to 1989, failure to return a blue slip didn’t prevent a nominee from committee action, the Congressional Research Service says.

During President George W. Bush’s tenure, Republican lawmakers who controlled the Senate decided that if the White House held pre-nomination consultation with both home-state senators, then a judicial nominee wouldn’t necessarily be precluded from consideration.

Mr. Grassley and Sen. Dianne Feinstein of California, the committee’s top Democrat, have sparred over how the tradition should be applied.

Mrs. Feinstein said Republicans were able to block several of President Obama’s picks by failing to return blue slips, and she said Democrats who controlled the Senate at the time abided by those objections.

Curt Levey, president of the Committee for Justice, said it has been the exception when the blue slip tradition hasn’t been followed during the past 10 to 15 years.

He cited a period under Mr. Bush when Sen. Orrin G. Hatch, Utah Republican and then-chairman of the Judiciary Committee, said he didn’t always take the blue slips into account for nominees because Democrats were abusing the process.

“There’s always sort of this tension going on, and somehow they work it out and save the blue slip,” said Mr. Levey. “I kind of suspect that’s going to happen again.”

Mr. Levey said there is no hard and fast precedent on what qualifies as consultation.

“If you seem like you’re sincerely getting input from the senators, I think that counts as consultation,” said Mr. Levey. “I don’t think it’s fair to say there was no consultation just because a senator didn’t get their favorite.”

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

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