‘Blue Slip’ Practice Can’t Stop Trump’s Circuit Court Nominees: McConnell

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By Nancy Ognanovich

Senate Majority Leader Mitch McConnell (R-Ky.) signaled he’s likely to take more shortcuts to get President Donald Trump’s judicial nominees to the floor, saying the chamber’s practice of letting senators veto judicial nominees from their states is merely a “custom” rather than a binding rule.

The practice refers to slips of paper (called “blue slips") by which senators sign off on federal judicial nominees from their states. McConnell said during a White House press conference with Trump that Judiciary Committee Chairman Charles Grassley (R-Iowa) may or may not decide to follow the tradition, which can delay confirmations.

But he said for himself he doesn’t believe it should be used to limit action on Trump’s nominees to the influential federal courts of appeal.

“My view is a blue slip on a circuit judge should be a notification of how you intend to vote,” McConnell told reporters.

McConnell spoke after meeting with Trump and Vice President Mike Pence to discuss the fall outlook, including plans to undertake a revamp of the nation’s tax code. The majority is expected to soon start a push to confirm more federal judges as there now are more than 50 judicial nominees in play, with 10 ready for floor consideration and more than 40 others working their way through Grassley’s committee.

Trump complained that fewer of his nominees are being confirmed than other recent administrations, though the White House was slow earlier this year to formally transmit nominees for both the judicial and executive branches of government. The president blamed Democrats for the low number of total confirmed nominees, saying they now total 182.

“Mitch is going to begin pushing them very hard,” the president said.

Competing for Floor Time

McConnell worked to confirm Supreme Court Justice Neil Gorsuch last spring but since then the Senate has turned its attention mostly to legislation, particularly attempts to repeal and replace the Affordable Care Act. McConnell and Trump said there now will be a heavy emphasis on enacting tax cuts.

But work on processing nominations, including for the federal judiciary, is expected to also pick up.

“The Senate’s fall agenda includes confirming more nominees to the judiciary, administration, and other important positions,” McConnell said on the Senate floor after returning from the White House meeting.

Among others, the Judiciary Committee is working to soon advance the nomination of Gregory Katsas to serve as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Katsas currently serves in the White House Counsel’s Office. The panel is planning a hearing on the nomination Oct. 17.

The blue slip issue recently came to the fore during Judiciary’s consideration of David Stras to serve on the U.S. Court of Appeals for the Eighth Circuit. Sen. Al Franken (D-Minn.), who wasn’t consulted by the White House about the choice, refused to return a blue slip to Grassley in order to try to block the nominee from advancing. Franken said he is concerned that Stras, who clerked for Supreme Court Justice Antonin Scalia, would move the Eighth Circuit further to the right. But Sen. Amy Klobuchar (D-Minn.) did return the slip, a move that some experts say allows Grassley to ignore Franken’s objections.

District Court Judges Not Mentioned

McConnell limited his comments to circuit judge nominees, whose appointments often have the power to shift the philosophical balance on their courts. McConnell has said his goal is to confirm as many conservative judges as possible to help Trump carry his strategy to roll back Obama administration laws and regulations.

McConnell said the blue slip in the matter of circuit judges can’t be used to block any of them.

“To conclude otherwise would have left us in the following position at the beginning of this Senate: 48 Democratic senators would have been able to blackball 62 percent of the circuit judicial nominees. That’s simply not a tenable place to land in a Senate that now deals with judges with a simple majority,” McConnell said.

To contact the reporter on this story: Nancy Ognanovich in Washington at nognanov@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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