At least one GOP senator is signaling that he’s ready to rip up a long-standing, yet obscure, Senate tradition that allows one person to single-handedly obstruct judicial nominees.
Sen. Tom Cotton (R-Ark.) told conservative radio host Hugh Hewitt on Tuesday that if Democrats start abusing the so-called blue slip rule, Republicans should consider dumping the policy, which allows a senator to block a judicial candidate from his or home state by simply not returning a blue slip to the Judiciary Committee.
Committee chairmen traditionally do not forge ahead with the confirmation process unless both home-state senators of a nominee have returned a blue slip — giving those two lawmakers significant leverage on whether the White House can get its favored judicial picks.
“I think the blue slip tradition can be helpful if it encourages the White House to consult in advance with senators,” Cotton told Hewitt, an avowed opponent of the blue slip rule. “But we can’t allow Democratic senators to continue to obstruct this president’s agenda. If they’re just arbitrarily not returning blue slips, we have to consider changing that tradition to one of its past other forms.”
President Donald Trump nominated his first major slate of conservative judicial nominees on Monday — including two candidates to the appellate courts who had also landed on Trump’s short list of potential Supreme Court justices during the presidential campaign.
Those two nominees are Michigan Supreme Court Justice Joan Larsen, nominated to the 6th U.S. Circuit Court of Appeals, and Minnesota Supreme Court Justice David Stras, Trump’s pick for the 8th Circuit.
The move has already drawn criticism from Democrats, who lobbed attacks at now-Supreme Court Justice Neil Gorsuch for being recommended by conservative groups such as the Heritage Foundation and the Federalist Society, which helped Trump craft those lists.
Michigan and Minnesota are both represented by two Democratic senators, who could block either Stras or Larsen by not returning their blue slips to the committee. None of them have so far indicated they would, although Sen. Al Franken (D-Minn.) raised concerns that Stras had been included on Trump’s campaign list, and aides said the senators had not been sufficiently consulted before the White House made the nominations.
“They informed me that they would [nominate Larsen], and I indicated we’ll go through our process and review and get input,” Sen. Debbie Stabenow (D-Mich.) said in a brief interview on Monday.
The current Judiciary chairman, Sen. Chuck Grassley of Iowa, has said he would abide by the blue slip rule, but he has noted there have been exceptions in the past. Former Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) went ahead and scheduled confirmation hearings for a handful of Michigan judges under the George W. Bush administration, although the senators had been blocking the process by declining to return the blue slips to the committee.
“Let’s be clear. It is not a rule. It is not written down in the Senate rules or the rules of the Senate Republican Conference,” Cotton said on Hewitt’s show. “And the tradition changes substantially based on the preferences and the views of the Senate Judiciary chairman.”