Today in Judicial Confirmations: Brennan Confirmed to 7th Circuit; Democrats Continue to Argue Blue Slip History

Today, the Senate confirmed Judge Michael Brennan to the Seventh Circuit and invoked cloture on Joel Carson (Tenth Circuit) and John Nalbandian (Sixth Circuit).  The Senate Judiciary Committee favorably reported Mark Bennett (Ninth Circuit), Nancy E. Brasel (D. Minn.), Robert R. Summerhays (W.D. La.), and Eric C. Tostrud (D. Minn.) to the Senate.

In the past few days, the Senate Democrats have turned to complaining about Chairman Chuck Grassley's blue slip policy, instead of attacking these excellent nominees' qualifications and merits, which has been a largely failed strategy. Chairman Grassley defended his blue slip policy on the Senate floor yesterday, as we described in yesterday's blog post.

Chairman Grassley reiterated at today's Senate Judiciary meeting that rather than his blue slip policy being unprecedented, the obstruction and delays by the Senate Democrats are truly what is unprecedented.  He described how blue slips entitle senators to consultation, not a one-person veto to the President's exercise of his authority. He has ensured that the purpose of the blue slip has been carried out for all nominees by requesting from the White House consultation logs for senators who have refused to return blue slips before he went ahead with hearings.

Senator Roy Blunt of Missouri also called out the Senate Democrats' obstruction on the Senate floor yesterday:

The fact that the Senate's time is taken in a way that it never has been before to process the president's nominations is outrageous. It's just outrageous. There's some view that, well, we need more time to think about the nominee. There's plenty of time to do that. It's called the committee process. It's called a vetting process that also may very well take too long now, but there is plenty of time for these circuit court nominees that we're voting on this week to be vetted.  There’s plenty of time to ask them questions.  There’s plenty of time to look into their background.  

The only reason, in my view, that we take the time we’re taking to do six votes, basically six votes on six judges in a week.  That's six 15-minute votes, if we were efficient enough to do that, that would be an hour and a half we’d take to vote on these six judges, and the final vote on none of them would be different than taking five days.  So why do you take five days?  You take five days because that means we can’t get to anything else.  Not only does it mean that the President’s ability to populate the government, as people elected him to do, is diminished, but also it eliminates the time we have to do the other work that the Senate is designed to do.  The Senate is in, as the Majority Leader likes to describe it, the personnel business, but it’s not supposed to be the only business of the Senate. 

I think we’ve [had] now over 90 of these cloture motions on nominees that the President’s made.  90.  Now, what does that mean?  In the previous six administrations, in the first two years of each of them, there was a total of 24 cloture motions – . . . 24 times, six presidents, in the first two years, an average of four times.  We’re going to certainly be to 104 times well before the end of two years. . . . 

No votes will be persuaded by running the clock.  No votes will be changed by running the clock.  And the power, of course, to put people on a federal bench for life is an important power given in the Constitution to the President for the Supreme Court and such other courts as the Congress may determine the country needs.  It’s not a thing to be taken lightly, but it’s also not a thing to be abused.  It’s not a process where the protection that you might use four times in two years is suddenly used 90 times in 15 months.  Something is wrong when that has happened to the process.

The Senate will reconvene next week to consider cloture motions on three additional circuit court nominees and vote on the Carson and Nalbandian nominations. Thanks to Chairman Grassley, Majority Leader Mitch McConnell, and the Senate Republicans, the Democrats are only able to delay nominations and prevent the Senate from dealing with its other business but not ultimately prevent the confirmation of President Trump's excellent judicial nominees.

Circuit Judge Week: Bounds Hearing Complete, Engelhardt Confirmed & Cloture Filed in Brennan Nomination

As we highlighted earlier this week, this is an important week for many of President Trump's judicial nominees, especially circuit court nominees. Several noteworthy events happened today.


Ryan Bounds
Today, Ryan Bounds, nominated to the Ninth Circuit Court of Appeals back in September 2017, finally had his Senate confirmation hearing (which can be viewed here). Bounds did very well and answered all the questions posed to him. Nonetheless, the obstructionist Senate Democrats brought up two attack narratives which have been repeatedly debunked: some notion that Bounds was less than transparent in providing documents during his initial vetting and arguing that the blue slip tradition is being abandoned.

First, some Senate Democrats tried to claim that Bounds was less than transparent during the vetting process, citing articles he wrote in college that poked fun at political correctness and attempted to offer a commentary on problems he saw in his college community. Ironically, Senator Ron Wyden of Oregon attempted to lead this attack, as could be seen on his Senate Floor speech yesterday (at about the 2:00:00 mark). However, as Ed Whelan points out, it was Wyden's own office that advised Bound to only go back through law school for pre-nomination vetting. So, not only is Wyden misleading in this attack, but Bounds followed the advice he sought from Wyden's Office. Further, once there was some question about these writings, Bounds provided these articles for review and further vetting.

Second, many Senate Democrats chose to argue the blue slips talking points again. Throughout the Bounds' hearing, a variety of Senate Democrats repeatedly attempted to bring up that the blue slip tradition has been abandoned or somehow modified. But it has not.

Following Bounds' hearing, Chairman Chuck Grassley delivered a speech on the Senate Floor highlighting the blue slip process under his chairmanship. He specifically noted (around the 3:41:00 mark):

[I]t is my prerogative to have the same blue slip policy as Chairman Biden and Kennedy and the vast majority of predecessors. Accordingly, I have said this, that negative or unreturned blue slips will not necessarily preclude the hearing for circuit court nominees unless the White House failed to consult with home state senators. And I get all sorts of information–I demand all sorts of information from the White House on this sort of consultation that's gone on. That is why I held hearings for David Stras, Kyle Duncan, Michael Brennan and Ryan Bounds despite the lack of two positive blue slips from home state senators. This policy is completely bipartisan. I've applied it to blue slips of Democratic and Republican senators. . . .

This speech is consistent with Chairman Grassley's explanation since the blue slip process became "controversial." Repeatedly, Chairman Grassley has explained how he will handle blue slips in his Judiciary Committee.


Kurt Engelhardt & Michael Brennan
On Senate Floor today, the Senate confirmed District Court Judge Kurt Engelhardt to the Fifth Circuit Court of Appeals, with a vote of 62-34. 

The Senate also voted to invoke cloture regarding the nomination of Michael Brennan to the Seventh Circuit Court of Appeals. As you may remember, Brennan is another nominee that the obstructionist Senate Democrats attempted to cry foul over the blue slip process. This will be another major vote to watch later this week.


We applaud and thank Leader Mitch McConnell and Chairman Chuck Grassley for their leadership in filling these important judicial vacancies and working to solve our judicial crisis. By filling these posts, the federal courts will run more efficiently and with less of a backlog caused by understaffed courts and overloaded dockets.

Big Week in Judicial Confirmations

This week is a busy and important one for judicial confirmations.  First, the Senate is taking confirmation votes on six excellent circuit court nominees: Michael B. Brennan (Seventh Circuit), Joel M. Carson (Tenth Circuit), Kurt D. Engelhardt (Fifth Circuit), John B. Nalbandian (Sixth Circuit), Michael Y. Scudder (Seventh Circuit), and Amy J. St. Eve (Seventh Circuit).  The Senate invoked cloture on Judge Engelhardt's nomination this evening, 64 to 31.

Majority Leader McConnell is threatening to hold the Senate in session through the weekend to ensure that these nominees are confirmed.  He said on the Senate floor earlier today:

This week, the Senate will consider another slate of extremely well-qualified nominees for seats on the federal bench. A thoughtful, independent, and expert judiciary is a cornerstone of our constitutional order. It’s been the case since the very beginning. 

Accordingly, the six circuit court nominees we’ll now consider have excellent reputations in the legal field, and have demonstrated they understand the proper role of federal judges in our government. First up is Kurt Engelhardt of Louisiana, the president’s choice to serve on the Fifth Circuit Court of Appeals.

On Wednesday, the Senate Judiciary Committee will hold a hearing on Ryan Bounds (Ninth Circuit), J. Campbell Barker (Eastern District of Texas), Susan Brnovich (District of Arizona), Chad F. Kenney (Eastern District of Pennsylvania), Jeremy D. Kernodle (Eastern District of Texas), and Maureen K. Ohlhausen (Court of Federal Claims).  On Thursday, the Committee will meet to vote on the nominations of Mark Bennett (Ninth Circuit), Andrew Oldham (Fifth Circuit), and eight district court nominees.  

The Democrats and liberal activist groups have been busy smearing Ryan Bounds for months.  They have been complaining about his nomination moving forward after Oregon's two extremely liberal, Democratic senators returned negative blue slips for him.  Ed Whelan explained why this is sadly ironic:

Democratic senators Ron Wyden and Jeff Merkley, along with Republican House member Greg Walden, formed a selection committee to rank candidates for federal judicial vacancies in Oregon. According to this February 2018 letter from Wyden and Merkley to White House counsel Don McGahn, the selection committee “consisted of eight highly experienced and diverse Oregon attorneys” who “carefully reviewed the applications of all the judicial candidates” and interviewed the finalists. Bounds emerged from this process as one of the selection committee’s “four highest ranked candidates” (“listed in alphabetical order”) for the very position to which Trump nominated him. 

You’d think that the fact that the Wyden-Merkley selection committee ranked Bounds as one of the very top candidates would stand him in good stead with them. But Wyden and Merkley have not only declined to support his nomination and even returned negative blue slips on his nomination. . . .

Democratic Senator Mazie Hirono of Hawaii attempted, yet again, to distort the history on blue slips, but the Senate Judiciary Committee majority and RNLA member Ilya Shapiro corrected the misrepresentations in this Twitter thread.

Follow the RNLA on Twitter for updates on the latest judicial nomination and confirmation news.

The Senate Blue Slip Saga Continues

Senate Democrats continue to wish that the blue slip courtesy was a rule of the Senate. However, it is not a formal rule--never was a rule--just a courtesy to advise the Senate Judiciary Committee.

We have previously highlighted the history of the blue slip and how many past Senate Judiciary chairs have chosen to manage the blue slip.

Current Senate Judiciary Chairman Chuck Grassley has previously spoken on this issue: For circuit courts, which cover multiple states, a negative or unreturned  blue slips will not be permitted to hold up nominees, unless the White House failed to consult with the home state senators; however, for district courts, which are confined to one state, the blue slip will carry considerably more weight and influence.

Chairman Grassley is simply following the Biden-Kennedy Rule regarding blue slips in the Senate Judiciary Committee. Chairman Grassley explained:

The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah).

Chairman Grassley reiterated this point during Judge Michael Brennan's confirmation hearing for a Seventh Circuit judicial vacancy three weeks ago:

Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing . . . After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested. Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.

Senate Democrats, however, seek to continuously obstruct any efforts made by President Trump and Republicans by using any and all means. Ranking Member Dianne Feinstein stated [around the 20-minute mark]:

I really object to this . . . Senator [Baldwin] has come in and spoken with me…she feel grievously injured by this [holding a hearing without a blue slip returned]. She has worked with . . . a fine screening commission. And is deeply concerned this has happened . . .

In addition to raising the blue slip, Ranking Member Dianne Feinstein also attempted to allude to some gender bias, too, as she closed:

I find it really very hard — and particularly for a woman senator who has tried so hard, who has worked with her state commission — for her view to be rebuffed in this manner.

When asked about this comment, Ranking Member Feinstein's office did not comment further.

Nonetheless, Judge Brennan, who has garnered bipartisan support and is ABA-rated as "well-qualified," was voted out of the Senate Judiciary Committee with a vote of 11-10, sadly along partisan lines with Senate Democrats crying foul over a blue slip "rule" that does not exist.

Currently, Judge Brennan's nomination is pending on the Senate Floor, where he faces a full Senate confirmation vote. We thank Chairman Grassley for his leadership in the Senate Judiciary and work to hold hearings for President Trump's well qualified judicial nominees. 

Chairman Grassley Has Not Done Away with Blue Slips, But Won't Let Democrats Play Politics with Judicial Nominations

During today's Senate Judiciary Committee hearing for Michael Brennan, nominated for the Seventh Circuit Court of Appeals, the Democrats objected to Chairman Grassley holding a hearing for Judge Brennan even though Senator Tammy Baldwin of Wisconsin did not return her blue slip.  There were even protesters in the gallery in blue shirts (part of an ongoing protest by the Center for American Progress and People for the American Way) and predictable gender-baiting by Democrats simply because Sen. Baldwin happens to be female.  

But as Chairman Grassley pointed out in his opening statement, the consultation purpose of the blue slip has been fulfilled:

As I’ve explained, a negative or unreturned blue slip won’t necessarily prevent a Circuit Court nominee from receiving a hearing, unless the White House failed to consult with home-state senators before choosing the nominee.  

After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested.  

Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.  

I’ll also note that [Republican] Senator Johnson returned his blue slip for President Obama’s most recent nominee for this seat last Congress, even though the commission had also failed to act in accordance with its charter in that situation. I held a hearing for this nominee, and he was voted out of the Committee. 

The Wisconsin judicial nominating commission is composed of six members, three from each party, and the support of five members is required for a judicial candidate to receive the commission's approval.  Sen. Baldwin's reliance on the "dysfunctional" commission's approval in this case is inconsistent with her actions on this vacancy while President Obama was in office.  Then, Sen. Baldwin submitted all eight potential nominees the commission had evaluated to President Obama for consideration.  Only two of those nominees had received the supposedly “required” five votes.  Apparently for Sen. Baldwin, the commission's approval is only important when there is a Republican in the White House.  As Chairman Grassley pointed out, Judge Brennan was the only candidate reviewed by the commission since President Trump took office who received any bipartisan support.

As Chairman Grassley responded to Senator Sheldon Whitehouse complaining about his doing away with the blue slip policy, he is not doing away with blue slips (starting at 1:53:36).  The role of blue slips is the prerogative of the Senate Judiciary Committee Chair, and he is keeping them as a way of ensuring consultation with home state senators by the White House.  However, he pointed out that there will be exceptions, such as when the nominee is for a circuit court vacancy, the White House consulted with the home state senators, and a senator has stated politically motivated reasons for not returning the blue slip.  Chairman Grassley is not going to allow Democratic senators, determined to cater to their radically liberal base and resist President Trump at every turn, to usurp President Trump's constitutional role of selecting federal judicial nominees.