- The Washington Times - Tuesday, September 5, 2017

Sen. Al Franken said Tuesday that he will use an arcane Senate tradition to try to derail one of President Trump’s appeals court nominees, marking an escalation in what has become a nasty fight over the shape of the federal judiciary.

Mr. Franken said he won’t return his “blue slip” for Minnesota Supreme Court Justice David Stras, Mr. Trump’s nominee for the 8th U.S. Circuit Court of Appeals. Under Senate tradition, the chamber won’t proceed on a judicial nominee unless both home-state senators return their blue slips, signifying acquiescence in the pick.

Left with little power to filibuster, the blue slip has become the most effective tool Democrats have to obstruct Mr. Trump’s court nominees.

Mr. Franken said he is objecting because Judge Stras looks to Supreme Court Justice Clarence Thomas and the late Justice Antonin Scalia as role models.

“I am concerned that a nominee nurtured by such an ideology would likely seek to impose it on the litigants before him,” Mr. Franken said in a press release announcing his decision.

His move puts pressure on Senate Republicans, who must decide whether to respect the blue slip tradition and scuttle the nomination or to proceed anyway, curbing yet another minority check.

Democrats curtailed the filibuster for district and circuit court picks in 2013, and Republicans followed their lead this year by defanging the filibuster in the case of Supreme Court picks.

Conservative advocacy groups on Tuesday urged Senate Judiciary Committee Chairman Charles E. Grassley, Iowa Republican, to move forward with Justice Stras’s nomination despite Mr. Franken’s move.

“Justice Stras follows the law, he has broad support from across the political spectrum in Minnesota, he was re-elected by wide margins (wider margins than Sen. Franken), and he even earned the highest rating from the liberal American Bar Association,” said Carrie Severino, chief counsel for the Judicial Crisis Network.

Republicans say that while blue slips have generally been respected, they don’t represent a hard-and-fast rule.

Democrats counter that they observed the tradition when President Obama was in the White House and Senate Republicans objected to his picks from their home states.

Sen. Dianne Feinstein of California, the top Democrat on the Judiciary Committee, said that last year alone, four of Mr. Obama’s circuit court picks stalled out because of blue slip objections.

She said she hopes Republicans give Democrats the same treatment.

“It’s the prerogative of home-state senators to evaluate potential federal judicial nominees and determine whether or not they are mainstream and well-suited to hold these important positions of public trust, which have real-world consequences for their constituents,” she said.

Sen. Amy Klobuchar, a Democrat and Minnesota’s other senator, said she thought Judge Stras deserved a hearing. Now that Mr. Franken has withheld his blue slip, she said, Mr. Grassley should stick to the tradition and derail the nomination.

“Given this important policy, and given Sen. Franken’s view that Justice Stras should not be allowed a hearing in the Senate, the White House will need to provide additional names for the 8th Circuit position,” Ms. Klobuchar said.

Mr. Franken is the first to use the Senate tradition as a stopper. Three other Democrats have returned their blue slips allowing Michigan Supreme Court Judge Joan Larsen and Amy Coney Barrett to have a confirmation hearing before the Senate Judiciary Committee on Wednesday.

Concerned about the potential blockage of Judge Larsen, Ms. Severino’s organization launched a $140,000 ad campaign in Michigan in June to pressure the state’s two Democratic senators to support her nomination by the president to the 6th U.S. Circuit Court of Appeals.

Liberal advocates objected to Mr. Grassley’s decision to hold a hearing involving both Judge Larsen and Ms. Barrett, as well as a number of Justice Department picks, on the same day.

Dan Goldberg, legal director for the progressive Alliance for Justice, called it “outrageous,” saying there has been only one circuit court nominee per confirmation hearing in the past.

“There were only three exceptions during the entire Obama presidency and all three were noncontroversial,” said Mr. Goldberg. “Instead, Chuck Grassley — for the second time this Congress — is ramming through controversial nominees.”

Mr. Goldberg said the senators should scrutinize the judges’ records on women’s and gay rights.

The Senate returned Tuesday from a summer recess to confirm Timothy Kelly to be a U.S. District Court Judge for the District of Columbia. The 94-2 vote makes him only the second out of 23 district judges nominated by Mr. Trump to get cleared.

Confirmations are still pending for more than 30 of Mr. Trump’s other federal judicial nominees.

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

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