McConnell ratchets up judicial wars — again

Mitch McConnell wants to further erode Democrats’ influence over lifetime judge appointments, floating plans to jam through judicial nominees opposed by their home-state Democratic senators.

But the Republican Senate leader’s own Judiciary Committee chairman, Sen. Chuck Grassley, is warning McConnell: Not so fast.

McConnell indicated to The Weekly Standard that he plans to push through judicial nominees even if they are opposed by their home-state senators — abandoning the so-called blue-slip rule that has been in practice for at least a century. Yet he apparently didn’t get buy-in from Grassley (R-Iowa), who has the power to jam through candidates for the federal bench.

"The chairman of the Judiciary Committee will determine how to apply the blue-slip courtesy for federal judicial nominees, as has always been the practice," Grassley spokesman Taylor Foy said Wednesday. "Over the years, chairmen have applied the courtesy differently, but the spirit of consultation has always remained.

Senate Republicans have been increasingly eager to eliminate the Senate’s “blue slip” tradition, in which both home-state senators give their imprimatur to a judicial nominee in order for the person to receive a confirmation hearing. McConnell’s comments come amid new pressure from conservative groups to increase the pace of judicial confirmations.

McConnell told the magazine that blue slips are “simply notification of how you’re going to vote, not … an opportunity to blackball.” He added that the blue-slip practice is not a Senate rule.

Democrats warned on Wednesday that diluting the influence of home-state senators could end up hurting Republicans who are feuding with Trump. And Grassley has so far been reluctant to end the blue-slip tradition, even as past judiciary panel chairmen, including Sen. Orrin Hatch (R-Utah), have ignored blue slips for circuit court nominees.

However, Grassley’s immediate predecessor as chairman, Sen. Patrick Leahy (D-Vt.), abided by the blue-slip tradition during his six years leading the panel under former President Barack Obama. That allowed Republicans to block more than a dozen nominees to the bench.

"Sen. Grassley has said that he expects senators and the president to continue engaging in consultation when selecting judicial nominees, and that, as in the past, any abuses of the courtesy would be addressed on a case-by-case basis," Foy said. "He has also said on many occasions that the full Senate should dedicate more time to considering nominees that have already been reported out of the Judiciary Committee."

So far this year, the Senate Judiciary Committee has held hearings for 24 of President Donald Trump’s judicial nominees, and hearings for five more candidates are scheduled for Tuesday. The panel has cleared 17 nominees, but 10 of them have yet to receive a confirmation vote on the Senate floor.

Grassley has also repeatedly said the Senate should skip its recesses, particularly so senators can confirm more judges.

Four top senators — McConnell, Grassley, Minority Leader Chuck Schumer (D-N.Y.) and California Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee — huddled privately in late September to try to defuse the blue-slip standoff. But one person briefed on the Sept. 26 meeting said McConnell had clearly made up his mind to abandon the blue-slip rule, while Grassley didn’t have much to say.

Feinstein accused McConnell of using blue slips to block some of Obama’s nominees and then reversing himself after Trump took office. She also suggested that GOP senators who’ve had disagreements with Trump could find themselves sidelined in the judicial confirmation process, as McConnell seeks to do to Democrats.

“It’s no secret that President Trump has differences with some Republican senators from states like Arizona, Tennessee, Maine, Alaska and elsewhere — they may be in the same boat as Democratic senators when they have judicial vacancies. Eliminating the blue slip takes power away from Republican senators in the event they are bypassed on nominations — under this administration or any other," Feinstein said in a statement.

And Schumer blasted McConnell for proposing to abandon blue slips and urged Grassley to rebut the majority leader.

“The Senate has fewer and fewer mechanisms that create bipartisanship and bring people to an agreement. The blue slips are one of them. It’s just a shame that Senator McConnell is willing to abandon it for circuit court judges,” Schumer said in a statement. “We hope that Chairman Grassley, who has always believed in the traditions of the Senate, will resist Senator McConnell’s request.”

Typically, home-state senators turn in “blue slips” to signal their support for the president’s judicial nominees, allowing minority senators to block some judges. In 2014, for example, Georgia’s two GOP senators struck a major deal with Obama to advance some judges, even though one was so conservative that then-Majority Leader Harry Reid (D-Nev.) opposed him.

But Democrats, feeling pressure from the liberal base to push back against McConnell and Trump, have resisted returning some blue slips that would allow Trump’s nominees to advance in the Judiciary Committee. One is David Stras, whose nomination to the 8th U.S. Circuit Court of Appeals is being blocked by Sen. Al Franken (D-Minn.).

McConnell and the Senate Republican Conference have ratcheted up the Senate’s confirmation wars, most notably by doing away with the 60-vote threshold to confirm Supreme Court justices, clearing the way for Neil Gorsuch to join the high court.

For more than a year before that, McConnell blocked Obama’s Supreme Court nominee, Merrick Garland, from even receiving a hearing. But Senate Democrats fired the first shot, getting rid of the 60-vote threshold for nearly all judicial and executive branch confirmations in 2013.

McConnell is pledging to speed up the rate of confirming judges on the Senate floor. Just seven judges, including Gorsuch, have been confirmed this year, and Republicans are beginning to worry they could lose the Senate next year, and with it the ability to confirm lifetime judges. Senate Democrats can delay each nominee for several days, but cannot ultimately stop them.

The Judicial Crisis Network had planned a $250,000 ad buy this week to run in Washington asking McConnell to call off all recesses until the 149 judicial vacancies are filled. McConnell’s aides reached out to JCN to assuage the group, and JCN suspended the ad buy hours before it was supposed to begin.

McConnell is indicating that he will begin prioritizing judges over executive branch nominees, who leave their posts when a new president takes office. District and circuit judges, in contrast, receive lifetime appointments.

“Priority between an assistant secretary of State and a conservative court judge — it’s not a hard choice to make,” McConnell told the Weekly Standard. “Regardless of what tactics are used by Democrats, the judges are going to be confirmed.”

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