Monday, October 9, 2017

THE PRAIRIE EDITOR: Senate Judicial Gamesmanship

[An earlier and shorter version of this article
appeared in the online edition of The Weekly Standard]

A local political squabble in Minnesota over the U.S.
senate confirmation of state supreme court associate
justice David Stras’ appointment to a federal appeals
court by President Donald Trump has drawn unusual
national attention.

According to recent tradition, the senators from the
nominee’s home state might block the appointment by
refusing to turn in a “blue slip” to the chairman of the
senate judiciary committee.

Justice Stras is one of the most respected jurists in the
state, and he has been publicly endorsed by numerous
prominent judges and lawyers of both political parties.
The obstacle to his confirmation is that both U.S. senators
from Minnesota are Democrats (called the Democratic-
Farmer-Labor Party or DFL here), and Justice Stras is a
conservative nominated by the Republican president.

Quite young (43) for a judge of his stature, he was one
of eleven judges listed by candidate Trump as potential
choices for the U.S. supreme court in 2016. A strong
conservative, he has a record for fairness and

The junior Minnesota senator, Al Franken, reportedly 
miffed he was not consulted on the nomination by the
Trump administration, has refused to send in his blue
slip, and he has come out against Justice Stras, only
citing the nominee’s conservatism. While this might be
a partisan justification to vote “no” for confirmation, it is
considered a lame excuse to withhold the blue slip, thus
preventing the nomination even to be voted on by the full

Democrats do cite that Republicans in the senate blocked
the confirmation of liberal federal judicial nominees by
President Obama near and at the end of his second term
(including supreme court nominee Merrill Garland) as
justification for such actions, but the fact is that
President Obama’s nominees through most of his
administration were confirmed. If this were the end of
Mr. Trump’s first or possible second term, Franken’s
argument would be much more credible.

The senior Minnesota senator, Amy Klobuchar, is up for
re-election in 2018. She initially expressed reservations
about the nomination, but after interviewing Stras and
observing the outpouring of bipartisan support for him,
she finally sent in her blue slip. In doing so, however,
she publicly assumed that Senator Franken’s veto
doomed the nomination.

In fact, it likely does not.

That is because  there is , senate sources say, another
(and also rare) senate procedure known informally as
the Biden-Hatch-(Ted) Kennedy (each former judiciary
chairmen) rule which enables the chairman of the senate
judiciary committee --- in this case,  Iowa Republican
Senator Chuck Grassley --- to ignore one of the home
state senator’s actions if the other senator turns in his or
her blue slip. This little-known procedure was created to
resolve situations such as this one, and Senator Franken’s
political pettiness could well cause it now to be invoked.

But even if the procedure mentioned above did not exist,
Chairman Grassley can simply ignore or discontinue the
blue slip tradition, and send the nomination to the full
senate for a vote because the blue slip “veto” is only an
informal practice and not a formal senate rule.

This outcome of this nominaton obviously could also
have consequences for the foreseeable future of the
federal judiciary.

Copyright (c) 2017 by Barry Casselman. All right reserved.

No comments:

Post a Comment