- - Thursday, November 23, 2017

ANALYSIS/OPINION:

When what goes around comes around, only the quick and nimble escape a painful smackdown. The Democrats in California have had remarkable success over the years packing the Ninth U.S. Circuit Court of Appeals with judges who have small appreciation for the Constitution as it was written, and now that may be changing.

President Trump, who promised during the 2016 campaign to choose judges with demonstrated devotion to that written Constitution, expected pushback from the Democrats, and he is getting it. So is Sen. Charles Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, which passes on the president’s nominees.

Mr. Grassley announced that he and the committee would no longer necessarily enable senators to veto judicial nominees in their home states. Senators in the past exercised this veto on blue paper, and these vetoes were called “blue slips.” The blue slips have been around for more than a century, and they have been among the Senate’s most cherished tools of power.

Mr. Grassley and his allies argue that the blue slips have enabled Democrats to prevent some of the president’s nominees to get a hearing before the Judiciary Committee, necessary to passing the nominations on to the Senate for final confirmation.

But Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, says Mr. Grassley’s decision undermines the independence of federal judges. “The lengths to which Republicans are going to jam extremely conservative and controversial nominees through the Senate is unprecedented,” she says, “and there’s only one reason to eliminate the blue slip — and that’s to allow President Trump to completely cut Democrats out of the process of selecting judicial nominees and continue patterns of selecting nominees far outside the mainstream.”



This is familiar rhetoric, and Republican versions of it were used to wail and rail against Barack Obama’s packing as many nominees “far outside the mainstream” as possible on the federal courts. Republican presidents do it, Democratic presidents do it. Entertaining judicial nominees a party doesn’t like is one of the consequences of losing a presidential election.

The U.S. appeals court in San Francisco is a particular case in point. Over the decades Democratic presidents have packed this court with liberals with little or no appreciation of the Constitution as written, and many of the decisions of the Ninth Circuit are imaginative indeed. The Ninth Circuit has been reversed by the U.S. Supreme Court more often than any other appeals court.

Senators often change their minds about the blue slips when winds and presidents change. In a speech in 2001, Mrs. Feinstein wanted to abolish the blue slip because it was “just plain wrong” that a single senator could “stop a nomination dead in its tracks.” The stakes are especially high now, because there are four open seats on the Ninth Circuit, which covers a large swath of the West.

Court packing is a game that both parties play. It’s a game called “politics.”

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