#blue slips

Joan McCarter at Daily Kos:

Members of the House Congressional Black Caucus met face-to-face with Judiciary Committee Chair Dick Durbin last week to give him this message: The archaic blue slip tradition he’s following is harming Black people. Senate Republicans are blocking district court nominations in their states, and the vacancies on those courts means justice is delayed.

“I don’t know why anyone, let alone Senate Democrats, would hold up a Jim Crow practice,” Black Caucus Chair Rep. Steven Horsford of Nevada told Politico in an interview this week about the meeting he and the CBC had last week. “It is literally about the fundamental survival of the people we represent,” Horsford added. That’s not hyperbole. Many of the CBC members represent blue districts, often with Black majorities, in red states. They and their constituents are being ignored and thwarted by their Republican senators.

Blue slips are an old Senate practice that the minority uses to block the Senate action. The practice isn’t even a rule; it’s a courtesy the majority extends to the minority. Home state senators recommend judge nominees to the president and then approve them—turning in their approval on a blue piece of paper—or veto those nominations by withholding the blue slip. Durbin is honoring them for district court judges, but he chose not to for appeals court nominees.

A coalition of progressive groups joined the CBC in approaching Durbin about the issue. They wrote to him this week, detailing the problem: “41 of the 45 district court vacancies subject to Republican blue slips—91%—still do not have nominees.” They wrote that Durbin’s decision to continue to honor blue slips “is contributing to this obstruction by giving home state senators more power than they have had through much of modern history, and if unchanged, it will prevent President Biden from filling dozens of judicial vacancies.”

The message from Hosford and his colleagues—Reps. Jim Clyburn of South Carolina, Terri Sewell of Alabama, Joe Neguse of Colorado, Troy Carter of Louisiana, Robin Kelly of Illinois, and Al Green from Texas—was that Durbin has the power to fix this. They want Durbin to recognize that “it’s hard for them as the sole Democrat in some of their southern states to defend a policy where one or two Senate Republicans can hold up those nominees.”

The advocacy groups, representing a swath of interests from civil rights to the environment, reinforced the message. They urge Durbin to adopt reforms: Follow the practice of President Joe Biden when he was in charge of the committee and move forward with a nominee as long the president has consulted with the senators, even if a senator doesn’t return the blue slip; give senators a hard deadline for saying yes or no to a nominee, as the committee did for decades; make senators provide public explanations when they deny a blue slip; and make the status of blue slips public.

In recent days, Sen. Al Franken of Minnesota did a simple, reasonable thing, that in the context of the current cravenly-led Senate stands as a monumental act of courage: he announced he would not return his “blue slip” on the nomination of David Stras to the Eighth Circuit Court of Appeals.

Since then, Franken has taken blistering heat from the right, which is howling that he has “abused” the blue slip tradition. Not so. Franken has used the slip as it was intended, to signal that he has looked at Stras’s record and does not believe that record justifies proceeding with a nomination to the federal bench. Indeed, Senator Franken is using the same longstanding practice Republicans used when President Obama was president. During the Obama years Republicans exercised their right to halt 18 judicial nominations by withholding the blue slip, and Senate Judiciary Committee chairmen of both parties respected the blue slip process in every instance.

And there is plenty of justification to oppose Stras. In his announcement of his blue slip decision, Franken zeroed in on Stras’s adherence to philosophies of two ultraconservatives on the Supreme Court, Justices Clarence Thomas and Antonin Scalia. Scalia, Franken noted, “embraced a rigid view of the Constitution that favored powerful corporate interests, was blind to the equal dignity of LGBT people, and often refused to acknowledge the lingering animus in laws that perpetuate the racial divide.”

Franken went on to express his concern that “a nominee nurtured by such an ideology” could be expected to “reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box.” He is right.

We have studied Stras’s record, and there is plenty of cause for concern.

As a Minnesota state Supreme Court Justice, Stras twice joined rulings that smoothed the way for a proposed Voter ID law for Minnesota, when he voted to let the measure appear on the ballot with a title and text that had been legally challenged as misleading. Voter ID laws are, of course, one of the most insidious ways in which the voting rights of people of color are attacked and diminished. Stras stood squarely on the wrong side of this issue and thankfully, the people of Minnesota ultimately defeated the measure at the ballot box.

In other cases, Stras took positions that were gratuitously harmful to people in vulnerable positions. He dissented from a ruling of the Minnesota Supreme Court that trial judges had the right to allow expert testimony that conflicted with the defendant’s claim of consensual sex. The experts had testified that a lack of detectable injuries, and a delay in reporting, are common in rape cases: critical information that the court needed to hear. In another case Stras, disagreeing with a majority of the state Supreme Court, would have prevented a police officer from suing the City of Minneapolis for age discrimination because the statute of limitations to sue had run out while the city took more than a year to investigate the officer’s original complaint.

There’s more, including a deeply troubling claim by Stras that Supreme Court decisions in the areas of school integration, LGBTQ rights and abortion rights represent court “ventures into contentious areas of social policy,” rather than milestones in advancing critical constitutional rights. It bears noting also that Stras went out of his way to praise a New Deal-era Supreme Court justice who believed that Social Security was unconstitutional.

It’s true that Stras’s resume makes him look as if he is conventionally qualified for a seat on the federal bench. But look beyond the CV at what we can glean about the nominee’s values, and there are serious questions about whether he is committed to upholding the rights of all Americans; Franken clearly gets that. Moreover, as Franken rightly pointed out, this nomination was made without consultation with either home-state senator – neither Franken nor Sen. Amy Klobuchar. What the White House must do now is simple: go back to the drawing board and pursue bipartisan consultation in the identification of another nominee for this seat. That is how the process is supposed to work, and we look forward to seeing that happen now, for the sake of Minnesotans and all others residing within the eighth circuit.